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INTERNATIONAL LABOUR OFFICE 

Governing Body 

GB.270/7
270th Session
Geneva, November 1997

SEVENTH ITEM ON THE AGENDA

308th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1934 (Cambodia): Interim report

The Committee's recommendations

Case No. 1900 (Canada): Report in which the Committee requests to bekept informed of developments

The Committee's recommendations

Case No. 1917 (Comoros): Definitive report

The Committee's recommendation

Case No. 1923 (Croatia): Report in which the Committee requests to bekept informed of developments

The Committee's recommendations

Case No. 1805 (Cuba): Definitive report

The Committee's recommendations

Case No. 1911 (Ecuador): Definitive report

The Committee's recommendations

Case No. 1915 (Ecuador): Definitive report

The Committee's recommendation

Case No. 1919 (Spain): Definitive report

The Committee's recommendations

Case No. 1888 (Ethiopia): Interim report

Complaint against the Government of Ethiopia presented by Education International (EI) and the Ethiopian Teachers' Association (ETA)
The Committee's conclusions

The Committee's recommendations

Case No. 1908 (Ethiopia): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Cases Nos. 1512, 1539 and 1876 (Guatemala): Interim report

The Committee's recommendations

Case No. 1892 (Guatemala): Definitive report

The Committee's recommendation

Case No. 1773 (Indonesia): Interim report

The Committee's recommendations

Case No. 1897 (Japan): Definitive report

The Committee's recommendations

Case No. 1869 (Latvia): Interim report

The Committee's recommendations

Case No. 1920 (Lebanon): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1894 (Mauritania): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1927 (Mexico): Interim report

The Committee's recommendations

Case No. 1921 (Niger): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1880 (Peru): Interim report

The Committee's recommendations

Case No. 1906 (Peru): Interim report

The Committee's recommendations

Case No. 1926 (Peru): Report in which the Committee requests to be kept informed of developments

The Committee's recommendations

Case No. 1914 (Philippines): Interim report

The Committee's recommendations

Case No. 1895 (Venezuela): Report in which the Committee requests to be kept informed of developments

The Committee's recommendation

Case No. 1902 (Venezuela): 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 6, 7 and 14 November 1997, under the chairmanship of Professor Max Rood.

2. The members of Japanese and Mexican nationalities were not present during the examination of the cases relating to Japan (Case No. 1897) and Mexico (Case No. 1927), respectively.

* * *

3. Currently, there are 59 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 27 cases on the merits, reaching definitive conclusions in 18 cases and interim conclusions in 9 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. 1929 (France/Guiana), 1930 (China), 1931 (Panama), 1932 (Panama), 1933 (Denmark), 1935 (Nigeria), 1936 (Guatemala), 1939 (Argentina), 1940 (Mauritius), 1941 (Chile) and 1942 (China/Special Administrative Region (Hong Kong)) because it is awaiting information and observations from the governments concerned. In Cases Nos. 1929 (France/Guiana), 1931 (Panama) and 1933 (Denmark), the governments have announced that their observations will be sent shortly. 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. 1812 (Venezuela), 1852 (United Kingdom), 1867 (Argentina), 1873 (Barbados), 1884 (Swaziland) and 1928 (Canada/Manitoba). In Case No. 1852 (United Kingdom), the Government indicated that it was not yet in a position to provide additional information, but that it would communicate a full and detailed reply following a public consultation on the problems linked to the labour legislation. In Case No. 1867 (Argentina), the Government has stated that it will be forwarding its observations shortly. In Case No. 1873 (Barbados), the Government requested additional time for providing its reply. In Case No. 1912 (United Kingdom/Isle of Man), for which the Committee has already received information sent by the Government in two different communications, the Committee requested the Office to ask the Government for additional specific information.

Observations requested from complainants

6. In Cases Nos. 1828 (Venezuela) and 1913 (Panama), the Committee is still awaiting the comments of the complainants. The Committee requests these organizations to send the observations and information requested without delay.

Partial information received from governments

7. In Cases Nos. 1787 (Colombia), 1835 (Czech Republic), 1916 (Colombia) and 1925 (Colombia), 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. 1865 (Republic of Korea), 1887 (Argentina), 1924 (Argentina), 1937 (Zimbabwe) and 1938 (Croatia), the Committee has very recently received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeal

9. As regards Case No. 1843 (Sudan), the Committee observes that, despite the time which has elapsed since the last examination of this case, it has not received the Government's observations. The Committee draws the attention of the Government of Sudan 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 this case, if its observations or information have not been received in due time. The Committee accordingly requests the Government to transmit its observations or information as a matter of urgency.

* * *

Missions

10. In Cases Nos. 1851 and 1922 (Djibouti), in a communication dated 30 August 1997, the Government thanked the ILO for its availability and expressed its desire that the direct contacts mission take place at the beginning of next year.

11. In Case No. 1865 (Republic of Korea), the Government indicated, in its communication dated 15 October 1997, that it agrees in principle to a visit from a high-level tripartite mission. The second half of 1997, however, is not appropriate for such a visit due to the internal situation. The Government has the intention of continuing its consultations with the Office so that the mission can take place during the first half of next year.

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: Canada (Ontario) (Case No. 1900), Croatia (Case No. 1923), Indonesia (Case No. 1773), Niger (Case No. 1921) and Venezuela (Case No. 1902).

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

Case No. 1777 (Argentina)

13. When examining this case with regard to the refusal to register the Congress of Workers as a trade union at its meeting of March 1997, the Committee urged the Government to take the necessary measures to carry out the immediate registration of the CTA (Congress of Argentine Workers) as a union [see 306th Report, para. 15]. In its communication dated 29 May 1997, the Government indicates that under resolution No. 325, dated 27 May 1997, the Ministry of Labour and Social Security granted union registration under its new name to the Central of Argentine Workers (CTA). The Committee notes with satisfaction the Government's statement in this connection.

Case No. 1899 (Argentina)

14. The Committee examined this case at its June 1997 meeting [see 307th Report, paras. 70-87, approved by the Governing Body at its 269th Session (June 1997)], when it requested 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; and 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.

15. In a communication dated 1 October 1997, the Government states that the Río Negro Provincial Education Council repealed resolution No. 203/96, which had been criticized by the Committee, by resolution No. 1304/97. As regards the delay in paying UNTER the union dues paid by its members which had been withheld since February 1996, the Government states further that the original debt when the new authorities of Río Negro Province took office in December 1995 amounted to $637,647.16, that payment had been delayed about four months, and that the debt currently owed could be broken down as follows: (1) $196,207.82 in dues paid for 1996, to be settled by the General Treasury; and (2) $56,107.70 in dues corresponding to SAC, for the first half of 1997 (the only debt owed for the current year).

16. The Committee notes with satisfaction the repeal of resolution No. 203/96 of the Education Council of Río Negro Province. As regards the withholding of trade union dues paid by UNTER members, the Committee notes the information provided by the Government and in particular the fact that it recognizes the existence of a debt to UNTER amounting to 252,315.52 pesos (equal to the same amount in United States dollars). In this respect, recalling that non-payment of trade union dues can result in serious financial difficulties for trade union organizations, the Committee again urges the Government to take the necessary steps 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, according to a reasonable timetable drawn up in consultation with this trade union organization.

Case No. 1862 (Bangladesh)

17. The Committee examined the substance of this case at its May 1996 and March 1997 meetings [see 304th Report, paras. 57-96; 306th Report, paras. 70-120]. When it last examined this case, the Committee requested the Government to:

18. In a communication of 9 July 1997, the Bangladesh Independent Garment Workers' Union Federation (BIGUF) informs the Committee that on 2 July 1997, BIGUF was officially registered by the Registrar of Trade Unions under the Ministry of Labour and Manpower, and notes that BIGUF includes affiliated local unions in the Dhaka and Chittagong regions. The Committee notes this information with interest.

19. In a communication of 17 May 1997, the Government states that a thorough inquiry was held into the matters raised by the complainants. Regarding the findings of the inquiry into the alleged attempts to discredit 11 BIGU members at the Palmal Knitwear Factory Ltd., the Government states that there was no person named Mr. Hasan Ali in the packing section, that Messrs. Nurul Islam and Shahidul Islam voluntarily resigned and are now working in other factories, and Mr. Mohosin Reza also resigned voluntarily. The Government states further that the allegations that Mr. Shamin Reza Pinu, General Manager of the Palmal Group of Companies, threatened BIGU members with transfer, has not been proved.

20. While noting the information provided by the Government, the Committee requests further information regarding the nature of the inquiries and details regarding the findings. The Committee notes with regret that the Government has not provided any information regarding the outcome of the inquiry into the other allegations raised and requests it to do so without delay.

21. In a communication dated 26 October 1997, the Government asserts that pursuant to section 3 of the Industrial Relations Ordinance, 1969, workers and employers have been granted the right to establish and join organizations of their own choosing without prior authorization. While there are no formalities or requirements to form an association, the Government notes that certain requirements must be met where an association desires to be registered as a trade union. On this point, the Committee reiterates that the membership requirement under the Industrial Relations Ordinance of 30 per cent of the total number of workers employed in an establishment or group of establishments concerned in order for a union to be registered, and permitting dissolution if membership falls below that level (sections 7(2) and 10(1)(g) respectively) are not consistent with the principles of freedom of association. The Committee again urges the Government to amend its legislation in this regard.

22. Regarding the granting of registration to the newly formed union at Saladin Garments Ltd., the Government in its communications of 26 October states that the proposed trade union applied for registration and the application was rejected by the Registrar. The trade union then appealed this decision, and the case is still pending in the Labour Court. Noting this information, the Committee repeats its recommendation that the Government take the necessary steps to ensure that the union is granted registration so as to enable it to exercise legitimate trade union activities, and requests the Government to keep the Committee informed in this regard.

23. Finally, on the issue of the need to open a genuinely independent judicial inquiry into the allegations of violations of trade union rights concerning Saladin Garments Ltd., the Government in its communication of 26 October states that all the complainants are working in their respective fields peacefully and one of the complainants, Mr. Chand Mia, has stated in writing that he did not make any allegation that he was tortured. The Committee requests further information regarding the nature of the inquiries and the findings. The Committee also requests the Government to provide the information requested in the other recommendations presented by the Committee.

Case No. 1849 (Belarus)

24. During its last examination of this case at its meeting in March 1997, the Committee once again requested the Government to: repeal Order No. 158 of 28 March 1995 to the extent it includes organizations and enterprises not providing essential services as defined by the Committee; implement fully the decision of the Constitutional Court which declared certain articles of Decree No. 336 to be unconstitutional; take the necessary measures, without delay, to ensure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995; immediately set up an independent commission of inquiry to clarify all the facts relating to this case and to keep it informed of the conclusions reached by the Procurator of the Republic and the commission of inquiry in this regard [see 306th Report, paras. 19-25].

25. The Committee notes with interest that an ILO advisory mission undertaken by Ms. Karen Curtis, Senior Legal Officer of the Freedom of Association Branch, took place from 6-10 October 1997 at the request of the Government to estimate the present situation with respect to essential services and to provide the necessary assistance in this regard. The Committee notes that meetings were held in this regard with officials from the Ministry of Labour, as well as representatives from the workers' and employers' organizations. In a communication to the Office dated 15 October 1997, the Government indicated that the list of enterprises where work stoppages could endanger the life and health of the population was being discussed by all the ministries concerned. The consolidated comments on this matter are to be examined by the National Soviet on labour relations at the end of October -- early November 1997. The Committee therefore expresses the firm hope that the Government will be in a position in the very near future to take the necessary measures to amend Order No. 158 so as to ensure that strikes are only prohibited in essential services in the strict sense of the term. It requests the Government to keep it informed on the progress made in this regard.

26. As concerns sections 1-3 of the Presidential Decree No. 336 which suspend the activities of the Free Trade Unions of Belarus, the Committee notes with regret that, from the information given to the mission by the Free Trade Unions of Belarus, a Presidential Order No. 259 dated 29 December 1995, issued subsequent to the Constitutional Court judgement rendering these sections unconstitutional, provides:

To provide the political and economic stability, protect rights and freedoms of citizens of the Republic of Belarus, the Cabinet of Ministers of the Republic of Belarus as well as state bodies shall, until amendments and alterations are introduced into corresponding legislative acts of the Republic of Belarus, ensure that provisions of the following Decrees of the President of the Republic of Belarus are implemented unequivocally:

... -- No. 336, dated August 21, 1995 on certain measures to ensure stability and order in the Republic of Belarus.

27. The Committee must therefore once again refer to its previous conclusions concerning Presidential Decree No. 336 [see 302nd Report, para. 221] and call upon the Government to take immediate steps to revoke those articles of the Decree which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard. The Committee also requests the Government to keep it informed on the progress made with respect to its recommendations on the remaining points.

Case No. 1509 (Brazil)

28. At its November 1996 meeting, the Committee examined this case concerning the murder of trade unionist Valdicio Barbosa dos Santos [see 305th Report, para. 13]. On that occasion it noted that the Government had stated that Mr. Marçal da Rocha, accused of having committed the homicide, was still at large and that the police were trying to arrest him. It also noted that the judicial authorities had summoned the defence lawyer of Mr. Romualdo Eustaquio Luz Faria, accused of being jointly responsible for the homicide, to file his defence pursuant to the relevant provisions of the Code of Penal Procedure. In a communication dated 10 October 1997, the Government states that upon the request of the Public Prosecutor and the defendants' representatives, a further test was performed on the weapon seized from Mr. Romualdo Eustaquio Luz Faria, which confirmed it as the weapon used to fire the shots that caused the death of the trade unionist. The Government declares that there is sufficient circumstantial evidence to show that Mr. Marçal da Rocha, who is still at large and is being sought by the authorities throughout the country, was the actual perpetrator of the homicide. It also states that Mr. Romualdo Eustaquio Luz Faria is still in detention and is being tried. The Committee notes this information.

Case No. 1819 (China)

29. At its meeting in June 1996, the Committee requested the Government to ensure that the three seafarers -- Hua Chun Gui, Zhang Ai Zhao and Gao Ziao Hui -- are compensated for economic losses incurred during their nearly two-and-a-half years' detention and that the money, seamen's documentation and qualifications confiscated from them at the time of their initial arrest are restored to them. It also requested the Government to keep the Committee informed of the measures taken in this regard [see 304th Report, para. 158].

30. In its communication of 15 June 1997, the Government indicates that, after having made inquiries at the Tianjin local People's Court, it appears that no progress has yet been made in respect of this case.

31. The Committee notes this information with regret. The Committee recalls that this case concerns arrests and detention in violation of trade union rights which took place in 1992 and that, three seafarers suffered important economic and other losses from having been detained for over a two-year period. It requests the Government to keep it informed of any progress made in giving effect to its recommendations, in particular as concerns the compensation of the three detained seafarers.

Case No. 1594 (Côte d'Ivoire)

32. At its June 1997 meeting [see 307th Report, paras. 23-25], the Committee had requested the Government to indicate if the workers dismissed at Irho-Lame in 1993 had appealed to the courts in order to have their rights restored. The Committee had also requested the Government to ensure that the social elections at the Autonomous Port of Abidjan, requested since 1993 by the dockers' members of a trade union affiliated to the Trade Union Federation Dignité, be held immediately and to keep it informed of the outcome thereof.

33. In a communication dated 15 October 1997, the Government indicates that the Trade Union Federation Dignité, during a meeting which took place on 22 May 1997 at the office of the Minister of Employment, Civil Service and Social Planning, confirmed that the workers dismissed at Irho-Lame had not yet appealed to the courts in order to have their rights restored. The Government also points out that at the Autonomous Port of Abidjan, all recognized trade unions have assessed that it would be more feasible to prepare a collective agreement for the dockers before considering social elections. A draft agreement is being discussed between the trade unions affiliated to the Trade Union Federation Dignité and those affiliated to the General Union of Workers of Côte d'Ivoire.

34. The Committee takes note of this information with interest and requests the Government to continue to keep it informed concerning the pending questions related to the adoption of a collective agreement for the dockers as well as the result of the social elections in the Autonomous Port of Abidjan.

Case No. 1824 (El Salvador)

35. The Committee examined this case at its meeting of November 1996 [see 305th Report, paras. 33-35] when it noted that the Government had not provided the information requested in March 1996 concerning the following recommendations:

36. The Committee also noted that in November 1996 the Government stated that the trade union official, Mr. Huezo, was detained on charges of aggression against a national police officer as well as for the illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work. In addition, there was a further charge against this trade unionist for false testimony, sequestration, murder threats, illegal detention, defamation and damages and interest, based on allegations filed in November 1994. The Committee requested the Government to keep it informed of the outcome of the legal proceedings under way against Mr. Huezo.

37. In a communication of June 1997, the Government sent a large volume of documentation on the different stages of the legal proceedings on the illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work against the trade union official Mr. Huezo.

38. The Committee notes this information and requests the Government to keep it informed as to the final outcome of the proceedings as well as on the other charge against this official concerning false testimony, sequestration, murder threats, illegal detention, defamation and damages and interest. Finally, the Government urges the Committee to provide the information requested regarding the other allegations.

Case No. 1823 (Guatemala)

39. At its meeting of June 1997, the Committee made the following recommendations on the pending allegations [see 307th Report, para. 301]:

(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 may take in this regard.

(b) The Committee requests the Government to investigate why Ms. Malbina 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.

40. In its communications of 10 June and 10 September 1997, the Government states that the members of the STIGT joined the General Trade Union of Employees of the Ministry of Labour and Social Insurance (in a letter of 10 June 1997, members of the General Labour Inspectorate request the Committee to close the case since an agreement has been reached). The Government also encloses a letter dated 11 August 1997 in which Ms. Malbina Dioderet states that her withdrawal was not motivated by anti-trade union pressure. As regards the change in functions of 18 inspectors, the current General Labour Inspectorate adopted a decision to reinstate them in their previous positions.

41. The Committee notes with satisfaction this information.

Case No. 1809 (Kenya)

42. The Committee examined this case at its March 1996 meeting [see 302nd Report, paras. 355-385]. It had requested the Government to take the necessary measures to enable university professors and lecturers to form and join organizations of their own choosing including through the registration of UASU, to transmit a copy of the High Court's judgement concerning the appeal of a decision to refuse trade union registration, to keep it informed on the fate of university professors and lecturers dismissed for carrying out legitimate trade union activity and who had not yet been reinstated and finally, to keep it informed as to whether the charges made against Dr. Adar in violation of his fundamental right to free speech had been dropped.

43. In a communication dated 12 May 1997, the Government states that all academic staff in Kenya are employed under individual contracts of employment with the university authorities. According to the Government, the question of refusal to register their trade union is, pursuant to the Trade Unions Act, a matter for the High Court to decide. The Government mentions that the appeal of the Universities Academic Staff Union officials against the decision of the High Court of 1994 to dismiss the case is still pending in Court. The Government declares that it will take no action until the Court has ruled on the matter.

44. The Committee takes note of this information. Recalling that legal proceedings concerning the appeal of a decision to refuse trade union registration should be concluded expeditiously as justice delayed is justice denied, the Committee firmly hopes that the High Court's decision in this matter will be rendered in the very near future and once again requests the Government to transmit a copy of the decision as soon as it is handed down. Furthermore, the Committee once again urges the Government to take the necessary measures to ensure that those university professors and lecturers dismissed for carrying out legitimate trade union activities and who have not yet returned to their jobs are immediately reinstated. Finally, regretting that it has received no information regarding the situation of Dr. Adar, the Committee reiterates that it expects that any charges made against him in violation of his fundamental right of free speech will be withdrawn and urges the Government to keep it informed in this regard.

Case No. 1883 (Kenya)

45. The Committee examined this case at its November 1996 meeting [see 305th Report, paras. 383-396]. It had requested the Government to keep it informed of the High Court's decision in the matter of the restoration of registration to Kenya Wildlife and Allied Workers' Union, and to provide it with a copy thereof.

46. In a communication dated 13 May 1997, the Government states that the matter concerning the deregistration of Kenya Wildlife and Allied Workers' Union is still in the High Court and has not been determined yet.

47. The Committee takes note of this information. The Committee expects that the decision of the High Court in this matter will be rendered in the near future and once again requests the Government to transmit a copy of the decision as soon as it is handed down.

Case No. 1719 (Nicaragua)

48. The Committee examined this case at its June 1996 meeting [see 304th Report, paras. 395-416], at which it appealed to the Government, with a view to encouraging a return to harmonious industrial relations, to endeavour to facilitate the reinstatement in their jobs of the UNE union leaders and members dismissed in the customs sector. In addition, with regard to the judicial appeals lodged by the workers dismissed from the San Pablo plantation and Amerrisque abattoir and the expulsion of the Secretary-General of ANDEN from the National Council of Education, the Committee firmly expected that the judicial authorities would hand down their decision as soon as possible.

49. In a communication of May 1997, the National Union of Employees (UNE) states that the Government neither recognizes nor is willing to accept the Committee's recommendation concerning the reinstatement in their jobs of the trade union leaders and members of the UNE dismissed in the customs sector.

50. In a communication dated 22 July 1997, the Government states in this respect that, according to the record of the administrative proceedings in the Ministry of Labour, the customs workers launched a strike in 1993 because the trade union leaders refused to negotiate with the General Directorate of Customs on the list of demands under the collective agreement and that the trade union leadership should assume its responsibility to its members, especially when the employer's side was willing to bargain. All of this was noted during an inspection at the scene, with the result that the employer consented to resume bargaining and the workers called off the strike. The workers (the trade union) were informed of this but did not respond. The General Labour Inspectorate subsequently decided, at the employer's request, to declare the strike illegal for failing to comply with the provisions of section 224 of the Labour Code. An appeal was lodged against this decision with the General Director of Labour, who, after reviewing the record, upheld the decision handed down by the General Labour Inspector, and as a consequence an official communication was issued to the executive authorities requesting them to safeguard the public order, since violent acts disrupting the public order and violations of the Penal Code had been committed. The administration of the General Directorate of Customs then requested the Departmental Labour Inspectorate to authorize it to dismiss ten trade union leaders in the customs sector for purloining documents and tampering with their contents, signatures and stamps. The proceedings were duly carried out and it was ascertained in addition that six of the ten trade union leaders no longer had legal capacity, as it had expired, so that the request for authorization to dismiss nine of the ten workers was granted. It should be pointed out that the violations of labour law committed by these trade union leaders were as follows: lack of integrity and immoral conduct at work, which was also confirmed on the grounds that had been verified and noted by the Ministry of Labour (absence of legal capacity). By Decision No. 44 dated 2 June 1994 (a duly certified copy of which was attached), the Supreme Court of Justice turned down the appeal for amparo (protection under constitutional provisions) lodged by the trade union leaders in the customs sector, finding that the Constitution recognizes the right to strike on the understanding that it is regulated by section 222 and other provisions of the Labour Code. However, a specific procedure has been laid down for the exercise of the right to strike, which must take place in conformity with the law. The Government adds that acts had been committed giving rise to unusual situations, for example the electricity had been cut off, home-made bombs had been set off, the circuit breakers of the lighting system had been sabotaged, customs officials' vehicles damaged and physical attacks had been perpetrated. The dangerous acts and abuses committed during the customs workers' strike were against the interests of society and the Government itself, and despite this harmonious labour relations had been restored with most of the workers, facilitating their return to work. The evidence which prompted the Ministry of Labour to authorize the dismissal of the trade union leaders, i.e. nine out of ten of the dismissals requested by the employer, was entirely clear. There had been no serious risk of abuse or serious prejudice to freedom of association, since no mass dismissals had taken place, the only requests for termination of the contract of employment by the employer on record being those mentioned above. Harmonious labour relations prevailed in the country's customs sector, since the strike was not really motivated by social demands and it was made clear that the trade union organization had been recognized by the representatives of the General Directorate of Customs. Negotiations of the collective agreement were currently under way and the Secretary-General of the trade union had stated that there was labour stability and good employer/employee relations.

51. In addition, in a communication of 6 October 1997, the Government states that: (1) regarding the pending legal proceedings relating to the dismissals at the San Pablo plantation, the workers' legal adviser presenting the case indicated that the matter has been abandoned since those involved decided to work in Costa Rica and discontinued the proceedings; and (2) regarding the legal proceedings concerning the dismissal of the workers at the Amerrisque abattoir, in conformity with the judicial decision, the employer made a settlement payment to 111 workers, who expressly renounced all rights to take further legal action. As a result, the employer cancelled the salary and gave them their compensatory payment.

52. The Committee notes the information communicated by the Government regarding the dismissal of the trade union leaders and members of the UNE, in particular its statement to the effect that there are now harmonious industrial relations in the customs sector. The Committee observes that a total of nine dismissals took place and considers that since they date back to 1993, reinstatement does not appear to be feasible. As regards the judicial appeals lodged by the workers dismissed from the San Pablo plantation and Amerrisque abattoir, the Committee notes the information submitted by the Government. Finally, regarding the legal proceeding with respect to the expulsion of the Secretary-General of ANDEN from the National Council of Education, as the Government has not communicated any information concerning the outcome of the proceedings, the Committee firmly expects that the judicial authorities will hand down their decision as soon as possible.

Case No. 1793 (Nigeria)

53. During its examination of this case in June 1997 [see 307th Report, paras. 33-35], the Committee strongly reiterated its request for a mission to examine the issues raised and, in particular, to visit detained trade union leaders and urged the Government to respond positively to this request without any further delay. On 18 June 1997, the Government proposed the month of September to the Office as a period when the mission might be received and the Office, in a communication dated 4 July 1997, suggested that the mission take place from 8 to 17 September and requested the Government to confirm these dates as soon as possible so that the necessary organizational arrangements could be made.

54. In a communication dated 5 September, and received in the Office on 8 September, the Government indicated that the dates proposed were not suitable and that a letter would follow. In a letter dated 10 September 1997, the Director-General expressed his grave concern at the continual postponement of this mission and called upon the Government as a matter of urgency to propose the earliest dates in which the mission could be received. No further communication has been received from the Government.

55. Noting this information, the Committee cannot but deeply deplore the fact that, for nearly three years, the Government has consistently evaded responding to the urgent calls for a mission and, when finally agreeing to a month when such a mission could be carried out, the Government waited until the eve of the mission to indicate that the period was not suitable. The behaviour of the Government gives rise to serious doubts concerning its good faith in dealing with the Committee. The Committee would also point out that a new complaint has been submitted against the Government of Nigeria alleging the adoption of further anti-union decrees and detention of unionists (Case No. 1935). In these circumstances, the Committee reiterates in the strongest possible terms the calls which have been made to the Government.

Case No. 1796 (Peru)

56. At its meeting in March 1997, the Committee requested the Government to keep it informed of the outcome of the appeals lodged with the Supreme Court by certain trade union officers dismissed by the Iron and Steel Enterprise of Peru; to keep it informed of developments concerning a draft amendment to the Industrial Relations Act which would lift the prohibition denying the right to belong to organizations of their own choosing to workers during their probationary period; to keep it informed of the final decision handed down by the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso; and to establish an independent inquiry into the dismissals of trade union officers and members in the National Railway Enterprise of Peru (ENAFER), and to keep it informed in this regard [see 306th Report, para. 508].

57. In a communication dated 30 July 1997, the Government informs the Committee that (i) of the five former trade union officers of the Iron and Steel Enterprise of Peru who had lodged appeals, two had withdrawn their appeals and received their social benefits. Concerning the three others, the Government will inform the Committee of the decision handed down by the court; (ii) as regards developments concerning the draft amendment to the Industrial Relations Act, it has been analysed and discussed by the Committee on Labour and Social Security of the Congress of the Republic, and the Committee's recommendation has been taken into account by removing the provision requiring that a worker not be undergoing a probationary period in order to be able to join a trade union; (iii) as regards the final decision of the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso, it has not yet been handed down; (iv) as regards the inquiry into the dismissals of trade union officers and members in the ENAFER enterprise, inspections carried out show that the enterprise was in the process of reducing staff in accordance with Legislative Decree No. 26120, since ENAFER comes within the scope of the privatization process for which provision is made in this legislation.

58. The Committee notes the information communicated by the Government and requests it to keep it informed of the decision handed down by the judiciary branch concerning the remaining three trade union officers dismissed by the Iron and Steel Enterprise of Peru, and of the final decision handed down by the higher court concerning the dismissal of trade union officer Mr. Iván Arias Vildoso. As regards developments concerning the draft amendment to the Industrial Relations Act, the Committee notes with interest that the Committee on Labour and Social Security of the Congress of the Republic has removed from the bill the provision requiring that a worker not be undergoing a probationary period in order to be able to join a trade union, and draws this aspect to the attention of the Committee of Experts on the Application of Conventions and Recommendations. Lastly, as regards the dismissals of trade union officers and members in the ENAFER enterprise, the Committee once again requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination.

Case No. 1813 (Peru)

59. This case concerning the death, physical assault and arrest of trade unionists was last examined by the Committee in June 1997 [see 307th Report, paras. 42 and 43]. On that occasion, the Committee noted the information provided by the Government according to which judicial proceedings had been instigated against the workers arrested (Félix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutierrez Cárdenas and Julio Camacho Diáz) for disturbing the peace, and against the three persons charged with the murder of the trade unionists Alipio Chauca de la Cruz and Juán Marcos Donazre Cisneros. The Committee requested the Government to keep it informed of the outcome of these judicial proceedings.

60. In a communication of 18 September 1997, the Government states that no final ruling has yet been given in these proceedings and expresses its willingness to keep the Committee informed on the matter. The Committee awaits further information from the Government.

Case No. 1878 (Peru)

61. In relation to the allegation made by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR), the Committee in its meeting of June 1997 had requested 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 [see 307th Report, para. 454].

62. In a communication dated 18 September 1997, the Government states that it is not within its competence to carry out an investigation as requested by the Committee, since there are already adequate legal mechanisms with which aggrieved workers may seek redress before the appropriate court and contest any reclassification which contravenes the law. The Government states that section 61 of the Regulations under the Law on Productivity and Competitiveness stipulates that reclassification by the employer can be contested and the workers concerned can submit an application to the judicial authority to suspend such reclassification within 30 days of the application being submitted.

63. While noting the legal mechanisms available to workers for defending their rights, the Committee notes with regret once again that the Government has not provided any new information to clarify the allegedly anti-union nature of the programme for the mass reclassification of 218 workers into positions of trust and as managerial staff, especially bearing in mind that, as pointed out by the complainant, all the workers reclassified as employees in positions of trust or as management staff are trade unionists, and include all the union's leaders, a fact which was not denied by the Government. In this respect, the Committee recalls that the Government, in ratifying Convention No. 98, has undertaken to apply Article 1 according to which "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment" and once again requests the Government to take any necessary measures to ensure that in future such staff reclassification programmes are not used to carry out acts of anti-union discrimination.

64. Finally, the Committee notes that in a communication dated 12 September 1997, the Single Trade Union of Technicians and Specialized Auxiliaries of the Peruvian Social Security Institute (SUTAEIPSS) made certain comments on the partial application by the Government of the recommendations formulated by the Committee at its March 1997 meeting relating to this case [see 306th Report, para. 540(a) and (b)]. The Committee requests the Government to provide its comments in this respect.

Case No. 1826 (Philippines)

65. During its last examination of this case in November 1996 [see 305th Report, paras. 54-56], the Committee had urged the Government to establish an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi Inc. in Danao City, and to take the necessary measures to ensure that a new certification election was held if the complainant's allegations of interference by the management of Cebu Mitsumi in the election proceedings of April 1996 proved to be true.

66. In a communication dated 11 September 1997, the Government states that the Office of the Secretary of Labor and Employment carried out a thorough study of the facts of this case. Further to this review, the Secretary of Labor and Employment issued a resolution on 31 July 1997 declaring the certification elections conducted in Cebu Mitsumi on 24-25 April 1996 as invalid and ordering the conduct of another certification election immediately to determine the true will of the employees. The decision, which is appended to the communication, relies on section 8(f), Rule VI, Book V of the Rules and Regulations of the Philippine Labor Code, which provides that a labour organization can only be certified as a sole and exclusive bargaining agent if it has obtained a majority of the valid votes cast by the eligible voters. Further, for a certification election to be considered valid, at least a majority of all eligible voters must have cast their votes. It was found that out of 9,850 eligible voters, only 1,032 cast ballots, thus not constituting a majority of the registered voters. The Government adds that, to date, the resolution has not been implemented as the management of Cebu Mitsumi Inc. has filed a motion for consideration with the concerned regional office. The motion has not yet been transmitted to the Office of the Secretary.

67. While observing that the Government did not establish an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi, the Committee notes with interest that the Government's own investigation into the matter resulted in the decision to declare that certification election invalid and to order the conduct of another certification election as soon as possible. The Committee therefore urges the Government to ensure that a new certification election is held immediately at Cebu Mitsumi Inc., especially in view of the fact that the CMEU filed a petition for a certification election nearly four years ago, in February 1994, which was, moreover, signed by almost all rank-and-file workers of Cebu Mitsumi [see 302nd Report, paras. 405 and 408]. The Committee requests the Government to keep it informed of any progress made in this regard.

Case No. 1785 (Poland)

68. In its 305th Report approved by the Governing Body in November 1996, the Committee once again requested the Government to keep it informed of any progress concerning the restitution of trade union properties confiscated during the period of martial law on an equal footing between the two trade union confederations [see paras. 57-59].

69. In a communication dated 28 May 1997, the Government states that after the adoption of the Act of 10 May 1996 amending the Act concerning restitution of assets, the Social Commission for Revindication took decisions, imposing upon the State Treasury an obligation of cash payment or compensation in other (non-cash) forms determined by the law, in favour of various organizational units of NSZZ "Solidarno". The trade union organizations filed motions concerning the revision of previous decisions of the Commission. The full realization of compensation in non-cash forms would only be possible after the Council of Ministers had issued an appropriate executory regulation but the finalization of the works on the Council of Ministers' regulation would occur after the Sejm had amended article 3.2, paragraph 1, of the Revindication Act as amended by the Act of 10 May 1996 in order to determine non-cash forms of compensation which would be governed by the mentioned regulation. Such an amendment was necessary, because the forms of compensation, laid down by the Act, did not prove feasible.

70. Article 45 of the Trade Union Act, in its wording formulated by article 6 of the above-mentioned Act of 10 May 1996, imposed upon the Minister of Labour and Social Policy an obligation of issuing (after consultation with NSZZ "Solidarno" and OPZZ), a regulation drawing up lists of real assets (with equipment) of the former trade union association which would become the sole property of NSZZ "Solidarno" or OPZZ. On 7 March 1997, the Labour Minister created the Inventory Commission composed of two representatives of each: NSZZ "Solidarno", OPZZ, the Labour Minister, plus a secretary of the Commission. The Inventory Commission was to complete its work by the end of May 1997. At the same time, parliamentary work was in its final stage (the adopted Act had been submitted to the Senate) on the amendment of the Trade Union Act (of 23 May 1991) and some other Acts necessary for effective distribution by the Labour Minister of assets of the former trade union association and transfer of ownership to beneficiaries of such distribution.

71. The Committee takes note of this information. It once again requests the Government to comply with its previous recommendation at an early date concerning the final and equitable redistribution of trade union assets between the two trade union confederations and to keep it informed in this regard.

Case No. 1891 (Romania)

72. The Committee examined this case at its March 1997 meeting [see 306th Report, paras. 556-575] at which time it urged the Government to amend the legislation regarding dispute settlement, in particular the provisions restricting the right to strike. The Committee further recommended that the Government ensure that police intervention, if it is necessary to enforce the execution of court decisions affecting strikers, takes place in full observance of the elementary guarantees applicable in any system that respects basic civil liberties.

73. In a communication dated 4 September 1997, the Government states that a new law on the settlement of labour disputes is in the process of being drafted in consultation with the social partners. During the discussions on this subject which took place in the tripartite consultative commission established by the Ministry of Labour and Social Protection, the representative of the Ministry acknowledged the willingness of the Government to repeal section 30 of Act No. 15, 1991 respecting the settlement of labour disputes which authorizes the Supreme Court of Justice to suspend a strike for up to 90 days. The Committee notes this information with interest and requests the Government to forward to it a copy of the new law once it is adopted.

74. The Government further acknowledges the importance it attaches to ensuring that all police action takes place pursuant to powers established by law and with full respect for fundamental rights and civil liberties. It states in addition that a human rights committee has been set up by the Ministry of the Interior to investigate violations involving the police. The Committee notes this information and requests the Government to indicate whether the human rights committee has been charged with investigating the particular allegations raised in the case, and to keep it informed regarding the results of such investigations.

Case No. 1618 (United Kingdom)

75. At its meeting in June 1996, the Committee requested the Government to keep it informed of any developments in the Harrison v. Kent County Council case. Furthermore, while noting the Government's indication that existing legislation provided adequate protection against discrimination on grounds of trade union membership or activities and that there were extensive procedures to ensure that the legislation is effectively implemented, the Committee recalled that the circumstances giving rise to this case indicated that an express protection in the legislation against blacklisting or other forms of discrimination based on past trade union membership or activities was necessary in order to ensure full protection to workers in this regard. It therefore urged the Government to give consideration to such explicit protection and to keep it informed of any measures taken [see 304th Report, paras. 18-20].

76. In a communication dated 21 July 1997, the Government indicates that the case of Harrison v. Kent County Council has been settled. Since however the terms of the settlement are confidential and the Government was not a party, the Government has no further details concerning the terms of the settlement.

77. The Committee notes this information. It further notes however that the Government has not provided any information concerning the consideration of incorporating an express protection in the legislation against blacklisting. The Committee therefore once again urges the Government to give consideration to such explicit protection and to keep it informed of any progress made in this regard.

Case No. 1581 (Thailand)

78. At its meeting in November 1996, the Committee once again requested the Government to keep it informed of the progress made in adopting the State Enterprise Labour Relations Bill and expressed its hope that the Bill, in its final form, would be in full conformity with freedom of association principles [see 305th Report, paras. 61-63].

79. In its communication of 26 September 1997, the Government indicates that, following the dissolution of the House of Representatives in September 1996, the Bill was resubmitted to the newly elected House on 18 December 1996. The Bill was approved in its final reading in the House on 19 February 1997 and passed its first reading in the Senate on 20 February and passed the Scrutinizing Committee of the Senate on 13 May. According to the Government, the Bill is now awaiting its second and final reading in the Senate.

80. The Committee takes note of this information. Once again it trusts that the Bill will be adopted in the near future and that, in its final form, it will be in conformity with freedom of association principles. It requests the Government to keep it informed of any progress made in this regard and to provide a copy of the Bill as soon as it has been adopted.

Case No. 1856 (Uruguay)

81. At its meeting of March 1996, the Committee made the following recommendation: "Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses S.A. Enterprise, the Committee requests the Government to conduct an inquiry into the reasons for the dismissals and, should it find that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on this subject" [see 302nd Report, para. 439]. During its previous examination of the case in November 1996, the Committee noted the Government's statements that the General Inspectorate for Labour and Social Security was carrying out an investigation into the allegations made [see 305th Report, paras. 64 and 65].

82. In a communication dated 5 March 1997, the Government states that the investigation is at the preliminary stage, i.e. the evidence presented by the parties concerned, consisting mainly of eyewitness accounts, is being collected and processed and that therefore no final conclusions have yet been reached on the matter. The Government adds that when the administrative procedure under way reaches its final stage, the Committee will be informed of the outcome.

83. The Committee takes note of this information and since the inquiry has already taken one year it hopes that the administrative authority will expedite the process and asks the Government to take steps to this end. The Committee awaits the final outcome of the inquiry.

* * *

84. Finally, as regards Cases Nos. 1623 (Bulgaria), 1726 (Pakistan), 1761 (Colombia), 1818 and 1833 (Democratic Republic of the Congo), 1834 (Kazakstan), 1850 (Congo), 1857 (Chad), 1858 (France/Polynesia), 1863 (Guinea), 1864 (Paraguay), 1870 (Congo), 1877 (Morocco), 1886 (Uruguay), 1896 (Colombia), 1903 (Pakistan), 1905 (Democratic Republic of the Congo), 1907 (Mexico) and 1989 (Croatia), 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. Moreover, the Committee has just received information concerning Case No. 1698 (New Zealand) and Case No. 1910 (Democratic Republic of the Congo) which it will examine at its next meeting. The Government of India indicated that it would send information concerning Cases Nos. 1854 and 1890 soon.

Case No. 1934
Interim report

Complaint against the Government of Cambodia
presented by
the World Confederation of Labour (WCL)

Allegations: Violations of the right to establish a trade union,
the right to strike and collective bargaining, dismissals of
trade unionists, pressure on and threats against trade unionists

85. In its communication of 8 July 1997, the World Confederation of Labour (WCL) submitted a complaint of violation of trade union rights against the Government of Cambodia. Additional information was sent in a communication dated 17 September 1997.

86. The Government sent its observations in a communication dated 19 August 1997, but it has not yet submitted its comments on the additional information.

87. Cambodia has neither ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

88. In its communication of 8 July 1997, the WCL denounces violations of the right to organize and the right to strike, as well as of other trade union rights and civil freedoms.

Overall situation

89. The WCL points out that the democratic elections in Cambodia and the pacification of the country have encouraged foreign investors to set up enterprises, especially in the clothing and textiles industry -- in which almost all the staff is made up of young girls from poor peasant families. The complainant describes the working conditions in the clothing industry: 14 hours of work per day, seven days per week; compulsory overtime; wages of US$30 (less than the subsistence level); deductions on wages by the employer to cover expenses incurred by medical examinations, training and the equipment provided to staff, etc.; deductions on wages for medical treatment required as a result of an occupational accident; lack of protection in the event of sickness or maternity; lack of protection against dismissals; shortcomings in the area of safety and health.

90. Workers have been insulted and received blows; some have even been locked up in the factories. They have been beaten up during demonstrations and around the factories. A number of workers received blows merely because they moved around during working hours -- and several accounts bear witness to this. This violence was perpetuated by the police or factory guards. The Secretary of State for Social Affairs wrote to employers to remind them of their obligations. It is common practice for women workers to be subject to a body search. Restrictive access to toilets is a further example of degrading humiliations inflicted on workers, who must use rationed coupons limiting their use of toilets to once a day. According to the complainant, both the labour inspectorate and the judicial system are extremely inadequate. In its additional communication of 17 September 1997, the complainant states that there have been no improvements in working conditions.

Establishment of the trade union SLORC

91. It was against this background that the first trade union organization -- the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) -- was set up on 10 December 1996 by a group of 158 workers in one of the largest factories in the country. The trade union soon had nearly 5,000 members.

92. With a view to improving working conditions, the trade union carried out peaceful action, started negotiations and concluded agreements on wages and working conditions with four enterprises. However, many enterprises refused to allow the trade union to exist; employers resorted to brutal action to undermine the determination of the workers and impede their lawful trade union activities. Furthermore, the State took repressive measures against the trade union.

Strikes

Cambodia Garment Ltd.

93. According to the complainant, the SLORC organized the first strike in Cambodia's modern history on 17 December 1996 in the factory of Cambodia Garment Ltd., to protest against working conditions, attempts to disband the recently established trade union and bad treatment inflicted on workers by their bosses. It also called for the respect of human rights, a minimum wage of $50, a 40-hour working week and paid maternity leave. Nearly 4,000 workers in the Cambodia Garment Ltd. went on strike. During the strike, the guards in the enterprise fired into the air to intimidate and disperse the workers.

94. The three main officials of the new trade union, Ms. Mary Ou, the President, and Ms. Om Navy and Ms. Phuong Sophon, were forcefully detained by the factory's management and threatened with dismissal. They were questioned for a whole morning by the directors on their role in setting up the trade union and were subsequently released.

Gennon Manufacturing

95. The workers of the Gennon Manufacturing enterprise went on strike to put forward their claims. A representative of the management refused to negotiate with the strikers, stating that the trade union was an illegal organization. A factory employee was dismissed after having lodged a complaint with the municipal court of Phnon Penh on 2 January 1997, on the grounds that the directors of the factory had forced her to have a body search in front of other employees.

Tack Fat Garment

96. The workers in the Tack Fat Garment enterprise took action to protest against: delays in the payment of their wages; the systematic dismissal of workers if they lodged a complaint; arbitrary cuts in wages; the detention of workers to force them to do overtime and threats to suspend them or cut their wages if they refused; dismissal in the case of a second refusal.

97. The workers in the factory went on strike on 3 January 1997 to obtain an improvement in their working conditions. The management tried to break up the strike by detaining 200 strikers. On 4 January, the trade union organized a peaceful demonstration to back its claims. The enterprise threatened to refuse to pay the wages for December if the workers did not end their strike. The demonstration, mostly made up of women, was violently crushed by the police, led by the chief of the Phnom Penh police. The Ministry of the Interior had ordered the police to go on the spot, where they used water cannons and beat up the workers -- some of whom, including women, were injured and others arrested by the police. One woman was admitted to hospital after receiving head injuries when she was thrown to the ground by the pressure of the water cannon. Another woman worker was injured as a result of blows she received from the butt of a rifle wielded by a policeman. Yem Sarin, a worker of 29 years of age, was punched by the police and had a swollen mouth. Men Peuv, 27 years of age, pushed against a wall by a policeman, had deep scratches on her face.

98. On 6 January, 500 workers gathered in front of the factory and demanded payment of their December wages. Police and anti-riot brigades intervened. The trade union officials urged the workers to enter the factory premises to avoid violence. Police entered into the factory and, using loudspeakers, ordered the workers to resume work. However, the workers were not intimidated. Pov Kero, 19 years of age, who was handing out leaflets listing the workers' claims (including: an end to arrears in wages, systematic dismissals of workers if they complained, arbitrary cuts in wages, overtime forced on workers), was forcefully taken away and beaten up so badly that he lost consciousness. He was detained all night. The owner of the factory, Mr. Lee, refused the workers' requests on economic grounds, arguing that if he complied this would raise production cost, and undermine investment and export prospects.

99. On 10 January, the press reported that the factory workers who had decided to continue work were under the surveillance of 100 or so members of the military police -- many of whom were armed.

100. The strike came to an end on 17 January. The employers accepted to start discussions on the workers' claims. On 18 January, when work was resumed, 13 workers were arbitrarily dismissed on the grounds that they had started working one day late. In fact, it seems that they were dismissed for having participated in the strike. They were subsequently informed that they would be reinstated if they undertook in writing to stop stirring up the workers. Thip Chantavy and Mao Chansithoeun, whose accounts appeared in the press on 20 January, were among the workers dismissed.

Violations of other trade union rights

101. According to the complainant, these actions clearly demonstrate that the Cambodian Government has violated the rights guaranteed under Conventions Nos. 87 and 98 and that the employers and the Government systematically restrict and undermine the right of workers to organize freely. The officers and activists of SLORC had tried to organize an independent trade union capable of negotiating with the employers. The refusal of the management of Gennon Manufacturing to negotiate, on the grounds that the trade union was an illegal organization, reflects the position of most of the employers. This attitude contravenes Article 2 of Convention No. 87 which guarantees the right to workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. The trade union was also set up in accordance with article 36 of the Constitution of the Kingdom of Cambodia, which stipulates that Khmer citizens of either sex shall have the right to form and to be members of trade unions

102. The right to strike recognized as a lawful means for workers to defend their interests and guaranteed under Convention No. 87, has been violated by the Government. The Government and the employers called in security forces on a large scale to put down the strikes in the factories and during the strikers' demonstrations. In view of the horrendous working conditions in Cambodia, particularly in the clothing industry, the WCL feels that the right to strike is an essential means whereby workers' organizations can promote their economic and social interests.

B. The Government's reply

Overall situation

103. In its communication dated 19 August 1997, the Government explains that, generally speaking, there has been a constant and considerable increase in the number of private enterprises, especially in the clothing industry. At the end of 1996, there were 43 clothing factories in Phnom Penh and in the neighbourhood of the city, which employed approximately 20,000 employees -- of whom the overwhelming majority were women. At the beginning of 1996, the employers in 36 clothing factories had founded the Cambodian Clothing Manufacturers' Association.

104. In March 1997, a new Labour Code was officially promulgated which, according to the Government, was an improved version of the Labour Codes of 1972 and 1992. The Ministry of Social Affairs, Labour and War Veterans (hereinafter referred to as the Ministry of Labour) has the urgent task of implementing the Labour Code. This legislation is as new for public officials as it is for employers and workers. The Government stipulates that the new Labour Code (in the same way as that of 1992) establishes working time at eight hours a day, six days a week. If overtime exceeds one hour a day, the employers must obtain previous authorization from the labour inspectorate. Workers may not be forced to do overtime against their will.

105. The Government points out that, according to the agreements reached between the Ministry of Labour and the Cambodian Manufacturers' Association of 25 December 1996 and 17 January 1997, the minimum wage has been set at US$30 for an apprentice and US$40 for a worker. According to the interministerial communiqué of 26 December 1996, the representative of the Ministry of Labour, the representative of the Ministry of Industry and the employers' association grouping 36 clothing factories continued their discussions. The employers agreed to grant the workers fringe benefits, overtime pay for night work and various expenses (punctuality bonuses, transport, uniforms, etc.). They nevertheless requested to be given some time to discuss specifically these issues with workers or their representatives. As regards working time, the employers decided to apply the 48-hour week as stipulated in the Labour Code. The Ministers concerned, for their part, decided to make gradual improvements to working conditions and the election of staff delegates. The Government points out that any expenses incurred by a medical examination are borne by the employer. The employer may deduct a part of the workers' wages in order to offset the loan taken out by these workers to buy the materials and equipment for which they are responsible. Any medical treatment for workers who have incurred an occupational accident is the responsibility of the employer. Any insults or acts of violence are completely forbidden and are considered a very serious offence on the part of the employer. There is no legal provision forbidding workers from going to the toilets. Workers are entitled to a rest period in the event of sickness or maternity. There is a maternity leave of 90 days and the beneficiary is paid at least half of her salary. Dismissed workers must be given advanced notice and be paid compensation, unless they have committed a serious offence. They are entitled to damages if they are dismissed without any valid grounds being given. The employer is responsible for the health and security of workers at the workplace.

106. Furthermore, the Government points out that according to the reports drafted by various groups of the labour inspectorate and other information, the Ministry of Labour came to the conclusion that there had been a general violation of working conditions. Nonetheless, the Ministry made the following comments: workers are only forced to do overtime occasionally, for very short periods, when there is a large order for clothing; in these cases, the workers were paid the corresponding wages and received an additional meal. Before 1 January 1997, some clothing factories paid a wage of less than US$30 a month; however, at that time, the Ministry had not yet established the minimum wage. Occupational accidents in clothing factories are rare and usually not very serious. Workers are only searched on their way in or out of the factory to protect the factory's property and guarantee security. A body search was only carried out in one factory in which two foreign employees searched two women workers in an indecent way. The latter lodged a complaint with the Ministry which made the employers at fault pay US$1,000 damages to each of the workers concerned. However, this was an isolated case. The large majority of workers are young, single girls and there are no grounds to believe that pregnant women are not entitled to maternity leave. In some cases, employers watch out for workers who go to the toilets to avoid work. In some factories which do not have an infirmary, employers authorize sick workers to seek medical attention outside the factory. Only very few factories still do not have occupational physicians and labour inspectors have taken steps to ensure that employers assume their responsibilities in this respect. The majority of workers dismissed did not receive compensation. Amongst the complaints lodged on this matter to the Ministry, there was only one case involving illness and the other three were related to trade union activities. Occupational safety is not a problem as the labour inspector carries out inspections in the area of occupational safety and health.

107. A number of workers were insulted by the managers in the factory, especially by the foremen. Section 79 of the Labour Code of 1992 and section 23 of the new Code, clearly stipulate that any insults, violent behaviour or physical assaults are considered a serious fault on the part of the employer. However, such cases have been rare in the past. Any time the Ministry has been informed of a complaint in this respect, it has sent an inspection group to settle the dispute immediately, ordering the employer to cease such action immediately and warning him that the matter will be brought before the courts if he commits a subsequent offence. To date, there has not been a second offence. Other offences give rise to warnings for the following reasons: government policy is trying to attract foreign investment to solve the problem of unemployment and develop the national economy. The clothing industry is developing rapidly and absorbing much of the labour force, particularly women. In Cambodia, labour legislation and regulations are a recent phenomenon and, as yet, there is an inadequate knowledge of the law, and a lack of experience and practice. The Labour Code has therefore been implemented in stages: before actually bringing a matter before the court or applying a penalty, the labour inspectorate has tried to increase awareness of the Code, monitor its application and give warnings. There are not yet enough labour officials or means to keep up with the rapid development of the economy and changes in the world of work. The contentious issue of allowing workers a certain period of time to go to the toilet is difficult: it requires not only the understanding of the employer but also the good faith of the workers. However, occupational physicians have advised employers to allow workers to use the toilets whenever they need to do so. Sick workers have been neglected for two reasons: not all factories have an occupational physician as yet and have sent their workers to be examined to make sure that they are physically fit -- as they should have done. The Ministry is taking measures to penalize factories which have not complied with this requirement.

Creation of the trade union SLORC

108. The Constitution of the Kingdom of Cambodia, adopted in 1993, stipulates the right of all citizens to establish and be members of trade unions and specifies that "the organization and conduct of trade unions shall be determined by law". The Free Trade Union of Workers of the Kingdom of Cambodia (SLORC) was established on 15 December 1996, before the new Labour Code, which contains provisions on freedom of association, had been adopted and officially promulgated. Although the Kingdom of Cambodia has not yet ratified Conventions Nos. 87 and 98, the new Labour Code contains specific provisions relating to trade union rights and freedoms in accordance with the standards of both of these Conventions. SLORC was set up by a politician from a party which is in opposition to the Royal Government and his political objectives outweigh any that might be to defend the real interests of workers. His name is Mr. Sam Rainsy, President of the Party of the Khmer Nation, a former member of the Royal Government who, according to the Government, was asked to resign by the National Assembly. The name of the trade union (which first of all seems to have been called "Trade Union of Free Workers of the Khmer Nation") and its activities are closely linked to the Party of the Khmer Nation. The president of this party was the direct head of this trade union, which is contrary to Article 10 of Convention No. 87. In an appeal dated 27 December 1996, of which the Government provides a copy, the Government referred to the demonstrations by workers in clothing factories who were asking their employers to respect working conditions such as working hours, wage increases, benefits and other requests. It also mentioned the inter-ministerial communiqué of 26 December and the wage agreement of 25 December. The Government states that "profiting from workers' action in support of their claims, a handful of extremists exploited the situation for their own political ends by inciting workers to organize demonstrations and marches without respecting the law still in force and using the name of 'Trade Union of Free Workers of the Khmer Nation' which had not yet fulfilled the necessary administrative requirements to influence national and international public opinion".

Strikes

Cambodia Garment Ltd.

109. In this factory, the workers had elected the delegates on 22 April 1995. It was not appropriate to organize a strike at this time because the legislation on trade unions had not yet been promulgated. At the time of the strike, discussions were being held at the National Assembly on the draft Labour Code. Informed of the strike, the Deputy Director of the Labour Inspectorate Department (Ministry of Labour) Mr. Kéo Borentr, decided to go to the factory on the morning of 18 December with the head of an inspection group to try and settle the dispute. Mr. Bun Va, representative of the factory director, confirmed that the strike of 15 and 16 December had been led by Mr. Sam Rainsy and Mr. Khiev Rada, President and Secretary-General of the Party of the Khmer Nation, respectively. He admitted that the factory guards had fired into the air on 17 December but that this had been to deter unknown persons, led by the two above-mentioned persons, from storming the premises after negotiations had broken down. The inspection group interviewed Mrs. Mary Ou, Mrs. Um Navy and Mrs. Phuong Sophon, President, Vice-President and Secretary-General of the SLORC, respectively, who stated that they had been detained by the employer but had not, according to the Government, been ill-treated or threatened with dismissal. The inspection group asked the three trade union officials to put an end to their trade union action, particularly the strike, whilst awaiting the adoption of the new Labour Code which would recognize trade union rights and freedoms. The Government enclosed with its reply the minutes of the meeting of 18 December "on the matter of setting up a trade union and its aims" between the representatives of the Ministry of Labour and the three trade union officials mentioned above. According to this document, the Deputy Director of the Labour Inspectorate informed the three women workers that the Code had not yet authorized the setting up of trade unions, but that the employees could put forward claims with respect to their rights and interests through the staff delegates they had already elected. He asked them to stop spreading propaganda and put an end temporarily to their trade union activities whilst awaiting the adoption of the new Labour Code which would regulate trade union rights and activities. The president of the trade union stated, according to this document, that the trade union, set up on 15 December 1996 with the assistance of Mr. Rainsy, intended to promote and defend the rights and freedom of workers and that it had the following objectives, amongst others: wage increases; cuts in weekly working hours; benefits in the event of sickness; dismissals with valid grounds; appropriate benefits in the event of pregnancy. She stated that this trade union had been set up at national level and had no political leanings. The inspection group went back to the factory on 19 December in the morning with a view to settling the dispute. The group saw Mr. Sam Rainsy and Mr. Khiev Rada, as well as many other people not belonging to the factory, enter into the factory premises. Both persons mentioned above insulted and were extremely rude to the factory directors; they also made accusations against the Government, especially against officials from the Ministry of Labour. Their aim was not to solve the problems but to stir up the workers against the employers and the Government, especially the Ministry which, at all times, had successfully tried to play a conciliatory role in disputes within the factory. Only very few workers in the factory, members of the party in question, took part in this strike -- together with drivers of taxi-motorbikes and vagrants paid by the party. According to the text of the inter-ministerial communiqué of 26 December, of which a copy was submitted by the Government, the Ministry of Labour discussed with the employer who agreed to satisfy the workers' demands on a number of points, including overtime, sickness benefit, maternity leave and, notice and compensation in the event of dismissal -- in accordance with the Labour Code. The employer also undertook to give instructions to the management of the enterprise to use decent language and behave in a correct manner towards the workers.

Gennon Manufacturing

110. When he was informed of the strike in this factory, Mr. Kéo Broentr went with the inspection group on the spot and stayed from 25 to 30 December 1996 to try and settle the dispute. The group first interviewed the employer and then, on the afternoon of 25 December, held a meeting with the strikers and informed them of the inter-ministerial communiqué dated 26 December concerning the increase of the minimum wage in the clothing industry to US$40 a month. In view of the fact that this factory had not yet any staff delegates, as it had just been created, the inspection group requested the workers to elect staff delegates as soon as possible so that the latter could lawfully represent the workers' interests in discussions with the employer. Mr. Sam Rainsy, his wife, members of the Party of the Khmer Nation and other persons not belonging to the factory arrived and started insulting the Government, the Ministry and factory management; they encouraged the workers not to accept any settlement of the dispute by the inspection group. Mr. Rainsy insisted that the five so-called representative workers that he had previously appointed, as well as his wife, should be able to enter the factory to negotiate with the employer. The latter accepted to receive these representatives -- but not Mr. Rainsy or his wife. Mr. Rainsy then started making threats and incited people to throw stones which caused damage to the premises. The persons involved in this violence refused to listen to the competent authorities and the police who advised them to settle the dispute peacefully.

111. As regards Mrs. Chun Rany and Mrs. So May, workers in the Gennon Manufacturing factory, who had accused the factory management of making them undress to be searched, this matter was settled by the Ministry on 12 February 1997 by means of a conciliation. The director of the factory accepted to pay each worker US$1,000 damages.

Tack Fat Garment

112. As in both other cases, the SLORC did not turn to the law to settle the dispute. On 3 January, at about 2 pm, most of the workers were at work. The inspection group, led by Mr. Kéo Borentr, was discussing with the directors of the factory when militants from the trade union caused panic in the factory by throwing stones onto the buildings, from outside, destroying part of a roof. Mr. Sam Rainsy and his followers urged the workers to down tools and started using the same gross language as in the other two cases. The strikers forced their way into the main entrance of the factory. Amongst them, there were two drivers of motor-trailers, Lam Ham and Vong Saroeun, who used a large hammer to destroy the main door. Mr. Rainsy then proceeded to call an election by show of hands of 11 provisional workers' representatives. About 50 workers, out of the 1,000 in the factory, raised their hand. On 4 January, a meeting was held from 8 a.m. to 6 p.m. between the employer and the 11 temporary representatives under the chairmanship of Mr. Kéo Borentr, to try and settle the dispute. The representative of the Ministry of Industry, Mines and Energy, the representative of the police of Khan de Meanchey and the representative of the Ministry of the Interior took part in this discussion. The workers' representatives confirmed that until then they had never committed any act of violence against the enterprise but that they had been threatened by forces outside the enterprise and encouraged not to work. All the representatives agreed to organize the election of staff delegates on 6 January. Both parties reached an agreement on 12 of the 15 points under discussion. The issues that remained pending concerned payment of overtime, piece rates and the date on which December 1996 salaries should be paid. At the time of the discussions, Mr. Rainsy and the SLORC activists announced that they did not recognize the 11 representatives previously elected -- whom they accused of being sold to the management. They started punching two representatives who wanted to inform the strikers of the way the discussions had evolved and of their outcome. They refused to recognize the agreement reached and submitted new demands. They persuaded a small number of workers to march. The crowd blocked the traffic, creating havoc and disturbing public law and order. In order to guarantee the safety of the majority of workers who wanted to continue working to protect the factory property and maintain social order, and in application of the communiqué of the Ministry of the Interior of 19 December 1996 and the appeal of the Royal Government of 27 December, the police took the two drivers of the motor-trailers to the police station and used water cannons to break up the demonstration. During these events, no worker or demonstrator was tortured or mistreated by the police, contrary to the claims of the complainant. Only Mr. Lam Han and Mr. Vong Saroeun were detained and they were released once they had been interviewed. On 6 January, the factory put up a notice calling on the workers to come and fetch their wages and to resume work on 8 January. On 8 January the factory director paid the December 1996 wages due to the workers and, on the following day, organized the election of nine staff delegates and nine substitute delegates. On 11 January, the director once again appealed to the workers to resume work on 13 January at the latest. On 13 January, the director called together the representatives elected to discuss the pending issues. In view of the fact that some workers had not yet started work on the 13th, the director postponed the date upon which work should be resumed to 17 January.

113. On 21 January, the Ministry received a complaint from 13 workers from the Tack Fat factory accusing the director of having dismissed them without valid grounds. To settle the dispute, the Ministry convened both parties, but the employer refused to reinstate the workers for the following reasons: nine workers (including Mao Chansithoeun) had downed tools and not started work again on 17 January; two workers had stolen factory property and had been dismissed; two workers had been dismissed because they had left their work and not started again at the end of their authorized leave; and Mrs. Thip Chantavy did not work at the Tack Fat factory. The Government provided a copy of the minutes of this meeting, which was held on 31 July 1997.

Other trade union rights

114. The Government states that the complainant has only based its case on the complaints from the SLORC and that this latter union has political objectives. It has carried out its activities without respect for the law. It has often resorted to violent action to attain its political goals. It is opposed to the Royal Government and to the inspection group which is trying to settle the dispute peacefully in accordance with legal procedures.

115. The Cambodian authorities have not violated the rights guaranteed under Conventions Nos. 87 and 98. Although it has not yet ratified these Conventions, Cambodia respects the right of citizens to set up trade unions without previous authorization. Neither the Government nor the employer forbade the workers from setting up a trade union, even though the new Labour Code had not yet been officially promulgated, and the staff delegates were recognized as being the only lawful representatives of the workers. Furthermore, the SLORC is led by a political party, which is contrary to Article 10 of Convention No. 87. Under the Constitution, the organization and conduct of trade unions is determined by law. Consequently, the refusal to negotiate with the trade unions cannot be considered as a fault by the employer because the new Labour Code had not yet been adopted. The strikes and demonstrations organized by the SLORC had not respected the law of the land, which is contrary to Article 8 of Convention No. 87. The meetings and demonstrations organized by the SLORC in the Cambodia Garment Ltd, Gennon Manufacturing and Tack Fat Garment clothing factories were held without previous authorization and involved acts of violence which infringed public law and order, which is contrary to sections 1, 2, 4 and 6 of the Act on demonstrations. The Ministry of the Interior, in a press communiqué dated 19 December of which a copy has been communicated by the Government, states that the trade union set up by Mr. Sam Rainsy had not yet officially submitted its file to any competent institution; it had therefore not been legally acknowledged and, consequently, the demonstration of workers organized by the trade union calling for the respect of the right to work, establishment of working hours and wage increases, was not lawful. Acts of violence were committed during the strikes, urged on by the trade union, which is contrary to section 1 of the Act on demonstrations. The trade union also infringed the right to private property, which is contrary to article 44 of the Constitution. The exercise of rights and freedom by any individual should not adversely affect the rights and freedoms of others. The exercise of such rights must be in accordance with the law (article 31 of the Constitution). The right to strike and to non-violent demonstration must be exercised in the framework of the law (article 37) and legal private ownership is protected by law (article 44).

116. The SLORC was set up before the new Labour Code had been issued. Before carrying out any activities, it therefore had to receive previous authorization from the director of the factory and the competent authorities. According to the disputes settlement procedure, the workers, employers and representatives of the Ministry of Labour are parties recognized as those authorized to settle a dispute. The security forces only intervene if the dispute causes a public disturbance and is accompanied by acts of violence. The presence and activities of the police and security forces in these three factories were therefore justified. To maintain public law and order, the police may arrest any demonstrator resorting to violence and take appropriate measures to break up demonstrations by using, for example, water cannons in accordance with provisions in the legislation on demonstrations. No worker was injured or mistreated. Mr. Lam Han and Mr. Vong Saroeun were only detained for a very short time. The competent authorities showed considerable restraint because they did not sentence the guilty or the persons who had encouraged workers to take violent action.

117. The Government expresses the hope that, thanks to the technical assistance of the International Labour Office, it will be able to make up for its shortcomings and embark on a gradual process of development which will be in the interest of workers.

C. The Committee's conclusions

118. The Committee notes that the allegations concern the violation of the right to establish freely trade unions and the right to strike and collective bargaining, dismissals of trade union members and pressure and threats against these trade unionists.

119. The Committee notes that the Government, although it has not yet ratified Conventions Nos. 87 and 98, states that it respects the principles contained therein and refers, in a detailed way, to a number of provisions in these Conventions in its reply.

120. The alleged events occurred against a background of particularly difficult working conditions as the country was engaged in an economic drive, and attempts were being made to attract investors in some new development sectors. The Government has acknowledged that there were abuses in working conditions and states that measures were taken to put these right.

121. The Government points out that labour legislation is a recent phenomenon in Cambodia, that knowledge of the laws, experience and practice in this area are as yet inadequate and that the number of labour officials and the means available to them have not been able to keep pace with the rapid developments in the economy and the world of work. The Committee notes with interest that the Government has expressed the intention of remedying the shortcomings with the technical assistance of the International Labour Office.

122. The Workers' Free Trade Union of the Kingdom of Cambodia (SLORC) was set up in December 1996. According to the complainant, a number of employers refused the trade union the right to exist, whereas others refused to recognize it on the grounds that it was an illegal organization. Furthermore, as soon as the trade union was set up, repressive measures were taken against the trade union officials and members. According to the Government, SLORC is led by the president of an opposition political party and the name, activities and objectives of this trade union are closely bound up with this party; the trade union's activities, which are sometimes violent, are not intended to defend the workers' interest but to pursue political objectives. As SLORC was set up before the new Labour Code was issued, it had first to receive previous authorization from the factory director and the competent authorities before it could carry out its activities. The Government states that since the Labour Code has been issued, the trade union has failed to apply the provisions concerning the registration of trade union rules.

123. On the basis of the documentation at its disposal, the Committee notes that the trade union in question was set up in December 1996 by more than 100 workers in clothing factories and that it now has a large number of members. The Committee notes that it is the first trade union to be set up in the clothing sector and that those employed in this industry are amongst its officials. According to the documents provided by the Government, the president of the trade union informed the Deputy Director of the Labour Inspectorate that the trade union, set up on 15 December 1996 with the help of Mr. Rainsy, had as its objective to defend the rights and freedoms of workers and to request, amongst other things: an increase in wages; a cut in weekly working hours; benefits in the event of sickness or pregnancy; and some control over dismissals. Furthermore the trade union had been set up at national level and had no political leanings. The Committee points out that the claims thus put forward by the trade union concerned working conditions and wages and that its activities, supported by a large number of workers, are those normally pursued by a trade union organization which operates to defend and promote the interests of its members. The Committee also notes that the trade union started negotiations which, in some enterprises, resulted in agreements on wages and working conditions.

124. From the information contained in the file, the Committee understands that the events which prompted the complaint, particularly the setting up of SLORC, occurred during a transitional period when the new labour legislation was about to be adopted and that it entered into force only three months later. The Committee nevertheless feels bound to recall that the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the principles of freedom of association provided that these regulations do not impair the guarantees laid down in Convention No. 87. However, if the failure to register resulted in a trade union being made illegal, this would be tantamount in practice to subjecting the registration of trade unions to previous authorization, and one of the basic principles of association is the right of workers to establish freely organizations of their own choosing, without previous authorization. The Committee also recalls that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. [See Digest of Decisions and Principles of the Committee on Freedom of Association, 4th edition, 1996, para. 24.]

125. In these circumstances, and noting that the new Labour Code does not appear to impose obstacles to the establishment and operation of trade unions, the Committee expresses the firm hope that the Government is now in a position to put the situation aright, thus allowing the employers' and workers' organizations to fulfil their functions. The Committee therefore asks the trade union to deposit its rules with the competent authority and the Government to take the necessary measures to ensure that the organization is registered without delay.

126. According to the complainant, a number of employers refused to negotiate with the trade union on the grounds that it was an illegal organization. In this respect, the Government points out that, in accordance with previous legislation, only staff delegates were acknowledged to be lawful representatives of the workers and that refusal to negotiate cannot therefore be held against the employer. According to a document provided by the Government, the representative for the Ministry of Labour stated to the SLORC officials, at a meeting on 18 December 1996, that the legislation did not yet allow the setting up of trade unions but that the employees could make their claims and put forward their interests through the staff delegates who had already been elected. He requested the officials of the trade union to give up their trade union activities temporarily until the new Labour Code had been adopted. The Committee notes that the Government, in an "appeal" of 27 December 1996, states that the staff delegates, who should be urgently elected in agreement with the employers, are "the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code".

127. In this context, the Committee feels bound to stress that freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing, but also the right for the organizations themselves to pursue lawful activities for the defence of the occupational interests of their members. [See Digest, op. cit., para. 447.] In this respect, by giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to recognize the right of trade unions to promote and defend the rights and interests of workers; the Committee concludes that this prevented the trade union from organizing its activities and operating and even undermined its very existence. Furthermore, the principles contained in the Workers' Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), guarantee that, where there exist in the same enterprise both trade union representatives and elected representatives, appropriate measures should be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned and to encourage cooperation between the elected representatives and the trade unions and their representatives [see Digest, op. cit., para. 787]. By giving precedence to the delegates over the representatives of the newly established trade union, the Government failed to take all the necessary measures to prevent the existence of delegates undermining the position of the newly established trade union or to encourage cooperation between both sets of representatives. Furthermore, the Committee feels that by stating that the delegates were the only representatives of the workers and employees in direct discussions with the employers and competent ministries under the Labour Code, the Government failed to apply the principle of the right to bargain collectively, whereby measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. [See Digest, op. cit., para. 781.]

128. In these circumstances, the Committee requests the Government to take the necessary measures so that the trade unions can promote and defend the interests of workers, especially by means of collective bargaining on working conditions, in line with the principle recalled above. The Committee requests the Government to take the necessary measures to ensure that the SLORC can negotiate working conditions in the clothing sector with the employers in this sector.

129. As concerns the right to strike, the Committee notes that strikes took place in three enterprises and that they were backed or extended by demonstrations in public places. The complainant alleges that the Government and employers called upon the security forces to intervene on a large scale to put down the strikes in the factories and during peaceful demonstrations, and that persons were injured as a result of the ensuing violence. As for the Government, it states that the organization of strikes and demonstrations by the SLORC had been outside the law. Acts of violence had been committed during the strikes and demonstrations at the instigation of the trade union, which had violated the Act on demonstrations. The Committee notes that this law stipulates, amongst other things, that the authorities must be informed in writing three days in advance by the organizers of demonstrations. The Committee notes that according to the Government, no worker was injured or mistreated and that two persons, who had been arrested, Mr. Lam Han and Mr. Vong Saroeun, were only detained for a very short time and subsequently released.

130. The Committee is unable to determine on the basis of the file submitted by the complainant, whether the measures taken by the Government were intended to break the strike, even if their aim was to put an end to the demonstrations in a public place and to disperse the demonstrators; the Committee does not have adequate information to determine the origin and seriousness of the violence which occurred during the demonstrations.

131. The Committee nevertheless recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [See Digest, op. cit., para 475] and that the right to organize public meetings constitutes an important aspect of trade union rights. However, the Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives, which it has considered as falling within the exercise of trade union rights, and those designed to achieve other ends. [See Digest, op. cit., para. 133.] Furthermore, the Committee stresses 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.]

132. Concerning the dismissal of 13 workers, on 18 January, when work was resumed in the Tack Fat Garment factory after it had been on strike, the Committee notes that, according to the complainant, the grounds for these dismissals were false and that the persons concerned were actually dismissed for having taken part in industrial action. The Committee notes that the Ministry of Labour sent an inspection group to the enterprise in July 1997 to gather information on the 13 dismissals. The Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. [See Digest, op. cit., para. 593.] The Committee is of the opinion that if it were proven that there were some basis in the allegations that workers were dismissed for taking part in a strike, this could constitute a serious violation of the principles of freedom of association. The Committee notes the information given by the Government regarding the reasons for these dismissals and that this provides evidence of their anti-union nature. In these circumstances, the Committee requests the Government to undertake an in-depth inquiry into these dismissals with a view to the reinstatement in their jobs of these workers determined to be the object of anti-union discrimination and to keep it informed of the measures taken in this respect.

133. The Committee notes that the Goverment has confirmed the temporary detention of Ms. Mary Ou, Ms. Om Navy and Ms. Phuong Sophon. In this respect, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association. [See Digest, op. cit., para. 70.]

134. Furthermore, the Committee notes that the Government referred in its reply to the complaints submitted to the Ministry of Labour concerning the compensation for dismissals in three cases "concerning trade union activities". The Committee recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. [See Digest, op. cit., para. 707.] The Committee requests the Government to submit full information on the three cases of anti-union discrimination to which it referred in its response and specify the circumstances of these dismissals and the outcome of the complaints in question; it also requests the Government to communicate the decision of the Ministry.

135. The Committee notes that, according to the complainant, the workers were the victims of brutal behaviour, had their integrity undermined, suffered bad treatment and were assaulted and humiliated in their factories. The Labour Inspectorate intervened with the employers and ordered that damages be awarded to the women workers who had lodged a complaint that they had had to undergo a body search. As regards the insults, blows and humiliations meted out, the Committee points out that the complainant refers to the fact that the Secretary of State called the employers to order and that the Prime Minister made statements calling for the respect of national honour. The Committee feels it relevant to emphasize once again the importance to be attached to the basic principles set out in the Universal Declaration of Human Rights, considering that their infringement can adversely affect the free exercise of trade union rights. [See Digest, op. cit., para. 32.] On many occasions, the Committee has emphasized the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties. In particular, the Committee has considered that all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind. [See Digest, op. cit. para. 36.] Facts imputable to individuals incur the responsibility of States because of their obligation to remain vigilant and take action to prevent violations of human rights. [See Digest, op. cit., para. 19.]

136. The Committee requests the Government to take firm and appropriate measures to prevent infringements of basic human rights and to guarantee their respect in order to bring about the necessary conditions under which workers are able to exercise freely their basic rights and particularly their trade union rights.

137. The Committee requests the Government to send its comments on the additional information received on 17 September 1997 from the complainant.

The Committee's recommendations

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

(a) Concerning the establishment of The Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee requests the trade union to deposit its rules with the competent authority and the Government to ensure that the organization is registered without delay.

(b) Concerning infringements of collective bargaining, the Committee requests the Government to take the necessary measures so that trade unions can promote and defend the interests of workers, especially by means of collective bargaining on working conditions. The Committee also requests the Government to take the necessary measures so that the SLORC can negotiate working conditions in the clothing sector with the employers in this sector.

(c) The Committee draws the Government's attention to the importance it attaches to the recognition that the right to strike is a means whereby workers may promote and defend their economic and social interests.

(d) The Committee requests the Government to guarantee respect of the principle 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.

(e) Concerning the dismissals of workers, the Committee requests the Government to:

(f) Concerning the attacks on workers' integrity and the bad treatment inflicted on them, the Committee requests the Government to take firm and appropriate measures to prevent infringements of basic human rights and to guarantee their respect, in order to bring about the necessary conditions under which workers are able to exercise freely their basic rights and particularly their trade union rights.

(g) Noting that the Government has confirmed the temporary detention of three trade unionists, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association.

(h) The Committee requests the Government to submit its observations on the additional information sent by the complainant in a communication dated 17 September 1997.

Case No. 1900
Report in which the Committee requests
to be kept informed of developments

Complaint against the Government of Canada (Ontario)
presented by
the Canadian Labour Congress (CLC)

Allegations: Legislative repeal of statutory access to collective
bargaining, termination of existing organizing rights and
nullification of collective agreements

139. In a communication dated 23 August 1996, the Canadian Labour Congress (CLC) submitted a complaint of violations of freedom of association against the Government of Canada (Ontario).

140. In a communication dated 12 September 1997, the federal Government transmitted an interim reply from the Government of the Province of Ontario.

141. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right of Association (Agriculture) Convention, 1921 (No. 11), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Rural Workers' Organizations Convention, 1975 (No. 141), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

142. In its communication dated 23 August 1996, the Canadian Labour Congress, on behalf of its affiliate the Service Employees International Union (SEIU), alleges that the Ontario Labour Relations and Employment Statute Law Amendments Act, 1995 (Bill 7), and the Ontario Labour Relations Act, 1995 (Schedule "A" to Bill 7), violate ILO standards and principles concerning freedom of association and collective bargaining. In particular, the complainant alleges that, under Bill 7, agricultural workers, domestic workers and certain specified professionals (architects, dentists, land surveyors, lawyers and doctors) are denied access to collective bargaining and the right to strike. In addition, the existing organizing rights of these workers were terminated, their current collective agreements were nullified and measures of protection against anti-union discrimination were removed. Finally, the complainant adds that Bill 7 removes successor rights and related employer rights from Crown employees in Ontario and eliminates successor employer protection from workers in the building services sector.

143. The complainant submits that these measures contravene the express terms of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right of Association (Agriculture) Convention, 1921 (No. 11), the Rural Workers' Organisations Convention, 1975 (No. 141), the Collective Bargaining Convention, 1981 (No. 154), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

144. The complainant specifies that the rights of workers to bargain collectively with employers in the Province of Ontario derive from the Ontario Labour Relations Act or from other statutes regulating collective bargaining for employees in specific sectors. The Labour Relations Act establishes the rules and procedures regarding the certification and decertification of trade unions as bargaining agents for workers, the duty of employers to bargain in good faith with these bargaining agents regarding terms and conditions of employment, and the various protections which facilitate organizing and collective bargaining, including: the prohibition against employer interference with trade unions or employee organizations; the prohibition against intimidation and coercion of workers by employers for union activity, including dismissal for union activities; protection of bargaining rights and collective agreements in cases of a sale of business; and other important protection.

145. Employees not covered by the Labour Relations Act or by another statute regulating collective bargaining are excluded from the protection and coverage of collective bargaining legislation and instead are governed by the common law. According to the complainant, statutory access to collective bargaining is intended to override the hostile approach taken by the courts at common law to union organizing activities and attempts to engage in collective bargaining.

146. Under Canadian law, without the statutory protection for organizing, collective bargaining and strike activity provided by the Labour Relations Act, including administrative enforcement machinery, workers are vulnerable to penalties (including dismissal), to legal action being taken against them for various acts of combination (including the torts of directly or indirectly inducing breach of contract and conspiracy to directly or indirectly induce breach of contract), and employers are under no legal obligation to bargain with employees over terms and conditions of employment. Moreover, common law has not recognized the binding nature of or enforceability of collective agreements.

147. As a result, to be denied access to the statutory machinery of collective bargaining is to be denied access to collective bargaining in any meaningful sense. In short, by removing any category of workers from coverage under the statutory machinery such workers are denied access to the ability to organize and engage in collective bargaining, protection from employer reprisal for engaging in protected union activity and the ability to enter into enforceable collective agreements.

Agricultural and horticultural workers,
domestic workers and specified professionals

148. On 10 November 1995 the Ontario Government proclaimed the Labour Relations and Employment Statute Law Amendments Act (Bill 7). Section 1(2) of Bill 7 repealed the existing Labour Relations Act and section 1(1) enacted its replacement, the Labour Relations Act, 1995 (included as Schedule A of Bill 7).

149. The previous government in Ontario had expanded the definition of employees covered by the Labour Relations Act to include professional employees and domestic workers in the Bill 40 amendments to the Labour Relations Act which were proclaimed in force on 1 January 1993.

150. Limited access to collective bargaining was extended to agricultural and horticultural workers with the enacting of the Agricultural Labour Relations Act, 1994 (Bill 91), which came into force on 23 June 1994.

151. According to the complainant, agricultural and domestic workers are recognized as two of the most vulnerable groups of workers in the Province of Ontario. In the period between the enactment of Bill 40 in 1993 and Bill 91 in 1994, and the coming into force of Bill 7 in 1995, organizing in the agricultural sector in Ontario had commenced under the Agricultural Labour Relations Act. The inclusion of domestic workers had less practical effect (partly since Bill 40 had retained the rule requiring a bargaining unit to be comprised of two or more employees and had enacted no mechanisms to establish sectoral bargaining). Organizing among professional employees, such as lawyers, had begun in some workplaces under Bill 40. In particular, lawyers employed by the Government of Ontario, through their bargaining agent, the Association of Law Officers of the Crown (ALOC), had entered into a collective agreement in March 1995. However, as a result of the enactment of Bill 7 and the Labour Relations Act, 1995, by the present Government, access to collective bargaining for agricultural workers, domestic workers and specified professionals has now been withdrawn, and any collective agreements pertaining to these workers have been nullified.

152. Section 3(a), (b) and (c) of the Labour Relations Act provides that the Act does not apply to domestic workers employed in private homes, persons employed in agriculture, hunting or trapping, or persons (other than employees of a municipality or persons employed in silviculture) employed in horticulture by an employer whose primary business is agriculture or horticulture. Section 1(3)(a) provides that, for the purposes of the Act, no person shall be deemed to be an employee who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity.

153. In addition, for workers to whom the Agricultural Labour Relations Act, 1994, applied, section 80 of Bill 7 strips bargaining agents of existing bargaining rights, extinguishes any existing collective agreements for these workers and terminates any proceedings commenced under the Agricultural Labour Relations Act. Similarly, section 7 of Bill 7 statutorily decertifies bargaining units of professionals employed in architecture, dentistry, land surveying, law and medicine and nullifies any agreements that apply to these employees. Section 7 has already had the effect of (a) extinguishing the bargaining rights for lawyers employed by the Government of Ontario and their bargaining agent, ALOC, and (b) nullifying the collective agreement between ALOC and the Government of Ontario. In the case of domestic workers, there were not yet any collective agreements, so it was unnecessary to terminate existing collective agreements, as in the case of agricultural and professional workers.

154. The complainant submits that excluding agricultural and horticultural workers, domestic workers and specified professional employees from coverage by the 1995 Labour Relations Act and extinguishing the existing bargaining rights of these workers constitutes discrimination against these employees on the basis of occupation in contravention of Article 2 of Convention No. 87, and the requirements of Convention No. 98. In addition, the exclusion of agricultural workers fails to secure to all those engaged in agriculture the same rights of association and combination as industrial workers are entitled to under Convention No. 11.

155. The complainant emphasizes that, as a result of the Bill 7 amendments to the Labour Relations Act, agricultural and horticultural workers, domestic workers and specified professional employees no longer have access to the machinery and procedures established under the Act to facilitate collective bargaining. Unions can no longer be certified as bargaining agents of these workers. Indeed, the transitional provisions in sections 7 and 80 of Bill 7 cancel existing bargaining rights for bargaining agents for these workers. Employers of these workers are no longer under any legal obligation to bargain with unions representing the affected workers or, indeed, to engage in any bargaining whatsoever regarding the terms and conditions of employment. The complainant concludes that these measures contravene ILO standards and principles concerning the right to organize and the promotion of machinery for collective bargaining.

156. In addition, having been excluded from the 1995 Labour Relations Act, agricultural workers, domestic workers and affected professional employees are denied protection against anti-union discrimination afforded in the Act. Furthermore, any workers' organizations that are formed by the excluded workers are not protected from acts of interference by employers which is otherwise provided for in the Act.

157. The workers excluded from the 1995 Labour Relations Act also have no right to strike and are not protected from the imposition of penalties or dismissal should they strike. According to the complainant, the Labour Relations Act provides the only guarantee of the continuance of employment status for striking workers and workers at common law have no such protection.

158. The complainant submits that the removal of the right to strike of the affected workers by virtue of their exclusion from the Labour Relations Act is not in conformity the ILO principles governing the right to strike. Furthermore, the removal of the right to strike has not been accompanied by adequate or impartial alternative mechanisms such as arbitration.

Successor and related employer protection
for Crown employees and building services

159. On another point, the complainant indicates that, for more than 30 years, labour relations legislation in Ontario has provided for the continuation of a union's bargaining rights in the event of a sale of a business (successor rights) or corporate restructuring (related employer rights). Under section 69(2) of the 1995 Labour Relations Act, where a business is sold, the union which has been certified or has given or is entitled to give notice to bargain continues to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business until the Labour Relations Board otherwise declares. The collective agreement between the employees and the original employer continues to be binding on the successor employer and the purchaser stands in the shoes of the vendor with respect to any rights or obligations under the agreement, including seniority and other rights of the employees.

160. The Ontario Labour Relations Board has described the rationale for this provision in the following terms:

161. In addition, under section 1(4) of the Act, the Labour Relations Board has the authority to treat related or associated employers as one employer for the purposes of the Act where their activities are carried on under common control or direction. According to the complainant this section was enacted to prevent the erosion of bargaining rights in situations where enterprises have a close relationship.

162. In 1993, the previous government in Ontario enacted the Crown Employees Collective Bargaining Act (CECBA). Section 10 of CECBA provided that section 64, now section 69(2), of the Labour Relations Act applied to Crown employees with respect to a transfer of an undertaking from an employer whose employees were Crown employees to whom the Act applied to another employer whose employees were not Crown employees; or with respect to a transfer of an undertaking between employers whose employees were Crown employees to whom the Act applied. Section 3 of CECBA provided that section 1(4) of the Labour Relations Act also applied with respect to Crown employees. These provisions were, in general, a continuation of successorship and related provisions which had been applicable to Crown employees since the initial enactment of Crown employee collective bargaining legislation in Ontario in 1972.

163. The present Government in Ontario has now eliminated the application of successor and related employer rights for Crown employees. Under Bill 7, sections 69 and 1(4) of the 1995 Labour Relations Act no longer apply to Crown employees. Bill 7 exempts the Crown from the application of the related employer provisions and the successorship provision where the Crown is selling its operations or where it is purchasing operations from another employer.

164. The previous government had also amended the Labour Relations Act in 1993 to provide successor employer protection to workers in the building services sector. Employees in the building services sector, such as cleaners, food services workers and security guards, are customarily employed by contractors who provide services to buildings on a contract tender basis. Once employees at a particular site have been unionized, then without successorship protection, they are vulnerable to their job security and bargaining rights being undermined should the building change contractors to provide the services. If the employees of the original contractor at the site are numerous, the original contractor may be unable to integrate them into its other operations and may, as a result, lay them off. In addition, the new contractor may be a non-unionized employer.

165. The previous government attempted to rectify this situation by amending the Labour Relations Act in 1993 to include section 64.2 which applied with respect to services supplied directly or indirectly to a building owner or manager that is related to servicing the premises, including building cleaning services, food services and security services and provided that a sale of a business, with all the attendant protection for employees and the bargaining agent, is deemed to have occurred:

(a) if the employees perform services at the premises that are their principal place of work;

(b) if their employer ceases, in whole or in part, to provide the services at those premises; and

(c) if substantially similar services are subsequently provided at the premises under the direction of another employer.

166. The purpose of this section was summarized by the Ontario Labour Relations Board as follows:

167. The present Government in Ontario has now eliminated the successor employer protection for workers in the building services sector by specifically repealing this section as of 4 October 1995.

168. The complainant contends that the effect of the amendments to the CECBA eliminating the application of the provisions of the Labour Relations Act regarding successor and related employers to Crown employees is that affected Crown employees will completely lose the protection of both bargaining rights and collective agreements following a sale by the Crown to a firm in the private sector, or the setting up of a related Crown agency to perform work previously done directly by the Crown. The same result obtains for those workers employed in the building services sector when there is a change of contractors.

169. The complainant submits that precluding the application of successor and related employer protection for the affected workers so that they lose the protection of both bargaining rights and existing collective agreements is inconsistent with the principles and standards of freedom of association and collective bargaining.

170. In conclusion, the complainant submits that the measures taken by the Ontario Government in the 1995 Labour Relations and Employment Statute Law Amendments Act and the 1995 Labour Relations Act significantly undermine ILO principles and standards of freedom of association and collective bargaining.

B. The Government's reply

171. In its communication of 12 September 1997, the Government first recalls that a case has been brought before the Ontario Court (General Division) on behalf of the United Food and Commercial Workers' International Union (UFCW) to have Bill 7 declared unconstitutional on the grounds that it violates the Canadian Charter of Rights and Freedoms. It is expected that this case will be heard on 21-23 October 1997. The Government considers that the scope and application of the concept of freedom of association is at the heart of both the domestic constitutional challenge and the complaint brought before the ILO. Furthermore, the issue of equality rights raises the question of whether a statutory labour relations regime can differentiate between occupational groups. Moreover, it is the Government's view that, since the complaint involves rights provided under the Canadian Constitution, it is most appropriate that the domestic court be provided the opportunity to consider the issues raised first in the domestic legal context. Finally, the Government indicates that it is possible that evidence to be introduced in the court proceedings and the court's deliberations will provide information that could prove useful to the Committee. For the above-mentioned reasons, the Government indicates its desire for the Committee to once again postpone its examination of this complaint until the outcome of the case before the Ontario Court. It then provides the following information in the form of an interim reply pending the outcome of the UFCW constitutional case.

172. The Government then indicates that, in light of the above, it does not intend to set forth its position in great detail, but does outline briefly the rationale for the Bill 7 changes. As concerns the repeal of the Agricultural Labour Relations Act, 1994, the Government indicates that agriculture in Ontario is overwhelmingly dominated by family farms. The sector is thus characterized by extremely low profit margins and unstructured, highly personal working relationships which make a statutory labour relations regime (and collective bargaining dispute resolution mechanisms in particular) inappropriate. Other aspects of Bill 7 that have been criticized are the restoration of certain exemptions from labour relations legislation based on occupational status, and the elimination of the application of the sale of a business provisions in such legislation to transactions involving the Crown and to certain transactions in the building services industry. With respect to the former, the Government indicates its view that labour laws originally enacted with industrial settings in mind are not always suitable for non-industrial workplaces, such as private homes and professional offices, where occupational duties and professional obligations may not be compatible with the highly formalized terms and conditions of employment and at least somewhat adversarial nature of relationships typical of a unionized environment.

173. The Government confirms its strong support for free collective bargaining. Bill 7 is designed to ensure an appropriate balance of power between unions and employers and to enhance the democratic rights of employees to be represented by a union of their choice. However, the Government indicates that what may be acceptable or even welcome consequences of unionization in an industrial setting can prove to be contrary to the public interest in certain other settings.

174. With respect to the application of the sale of a business provisions of Ontario's 1995 Labour Relations Act, the Government points out that the exclusion of Crown employees (which results from the fact that the Crown Employees' Collective Bargaining Act, 1993, does not incorporate those provisions by reference) does not in any way take away the right of such employees to unionize and establish a collective bargaining relationship with the new employer following the sale. Moreover, the Government has undertaken certain contractual obligations aimed at protecting the rights of former Crown employees in sale situations. As to the building services industry transactions that were briefly covered by the sale provisions of the predecessor labour relations legislation, these transactions had not historically been regarded as constituting a sale of a business in the first place. Furthermore, similar to the case of the Crown employees, there is nothing to prevent former employees of an outgoing building services contractor from unionizing and establishing collective bargaining rights with the incoming contractor. These employees are not excluded from the right to bargain collectively.

175. The Government concludes in hoping that this information will assist the Committee in providing interim conclusions pending a further submission once the judgement in the UFCW constitutional challenge has been rendered.

C. The Committee's conclusions

176. The Committee notes that this case concerns the exclusion of agricultural workers, domestic workers and certain specified professionals (architects, dentists, land surveyors, lawyers and doctors) from access to collective bargaining and the right to strike through the adoption of the Ontario Labour Relations and Employment Statute Law Amendments Act, 1995 (Bill 7), and the Ontario Labour Relations Act, 1995. The complainant further alleges that, with the adoption of Bill 7, the existing organizing rights of these workers were terminated, their current collective agreements were nullified and the statutory measures for protection against anti-union discrimination and interference on the part of the employer were removed. Finally, the complainant alleges that Bill 7 removes successor rights and related employer rights from Crown Employees in Ontario and eliminates successor employer protection from workers in the building services sector.

177. Firstly, as concerns the Government's indication that the examination of this case should be postponed pending the outcome of the constitutional challenge raised by the United Food and Commercial Workers' International Union (UFCW) before the Ontario Court, the Committee would recall that, although the use of internal legal procedures is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, Annex I, para. 33.] Furthermore, while sensitive to the Government's arguments, the Committee considers that, to the contrary, its examination of this case (originating from a complaint dating back to August 1996) on the basis of long-established international principles of freedom of association may facilitate national consideration of this matter in the light of those principles.

Agricultural workers, domestic workers and
certain specified professionals

178. Firstly, the Committee notes that the 1995 Labour Relations Act (LRA) excludes domestic workers, persons employed in agriculture, hunting or trapping and persons employed in horticulture by an employer whose primary business is agriculture or horticulture (section 3(a), (b) and (c)). Architects, dentists, land surveyors, lawyers and doctors are also excluded from the definition of "employee" for the purposes of the LRA under section 1(3)(a). Prior to the 1995 amendments made to the LRA by Bill 7, domestic workers and professional employees were covered by the Act and agricultural and horticultural workers were covered by the LRA by means of incorporation into the Agricultural Labour Relations Act, 1994. The latter was repealed by section 80 of Bill 7.

179. The Committee notes that the LRA establishes the rules and procedures regarding certification and decertification of trade unions as bargaining agents for workers, the duty of employers to bargain in good faith, and various protections including: the prohibition against interference by employers in union activities and against measures of anti-union discrimination, including dismissal; and the protection of bargaining rights and collective agreements in the case of a sale of a business. Moreover, employees who are not covered by the LRA, or by another statute regulating these matters, are excluded from the protection and coverage of collective bargaining legislation and are instead governed by the common law which, according to the complainant, has taken a hostile approach to organizing activities and attempts to engage in collective bargaining and has not recognized the binding nature, or enforceability, of collective agreements.

180. Beyond excluding the above-noted category of workers from the various protections afforded by the LRA, the Committee also notes that sections 7 and 80 of Bill 7 terminate the bargaining rights of existing bargaining agents and nullify existing collective agreements for these groups. According to the complainant, organizing had already begun in the agricultural sector and among professional employees and some collective agreements had been entered into during the short period between the granting of freedom of association and collective bargaining rights to these workers and their repeal through Bill 7.

181. The Committee notes that the Government, for its part, considers that a statutory labour relations regime and collective bargaining dispute resolutions mechanisms are inappropriate for agricultural work and non-industrial workplaces because of the low profit margins and unstructured, highly personal working relationships in the former and the occupational duties and professional obligations in the latter, which may not be compatible with the highly formalized terms and conditions of employment and the somewhat adversarial nature of relationships typical of a unionized environment.

182. The Committee would first recall that Article 2 of Convention No. 87 (ratified by Canada) is designed to give expression to the principle of non-discrimination in trade union matters, and the words "without distinction whatsoever" used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, etc. [See Digest, op. cit., para. 205.] Furthermore, by virtue of the principles of freedom of association, all workers -- with the sole exception of members of the armed forces and police -- should have the right to establish and to join organizations of their own choosing. As concerns domestic workers, the Committee recalls the Committee of Experts' position that, since these workers are not excluded from the application of Convention No. 87, they should be governed by the guarantees it affords and should have the right to establish and join occupational organizations (General Survey on freedom of association and collective bargaining, 1994, para. 59).

183. Furthermore, noting that the exclusion of agricultural and domestic workers and certain categories of professional employees also means that these workers are not covered by the provisions of the LRA granting and protecting strike action, 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]. However, the right to strike may be restricted or prohibited only: (1) with respect to public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of whole or part of the population) [see Digest, para. 526]. The Committee has always been of the view that agricultural activities do not constitute an essential service [see Digest, para. 545]. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions should be accompanied by adequate impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 547].

184. In light of the above principles, the Committee, referring also to the comments addressed to the Government by the Committee of Experts on the Application of Conventions and Recommendations, calls upon the Government to take the necessary measures to ensure that agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors all enjoy the protection necessary, either through the LRA or by means of occupationally specific regulations, to establish and join organizations of their own choosing. It also requests the Government to take the necessary measures to ensure that the right to strike is not denied to agricultural and horticultural workers, domestic workers, architects, land surveyors and lawyers and to ensure adequate compensatory guarantees where this right may be restricted in respect of the medical profession.

185. As concerns the exclusion of these workers from the collective bargaining machinery established by virtue of the LRA, the Committee notes the complainant's contention that the employers concerned are no longer under any legal obligation to bargain with unions representing the affected workers or to engage in any bargaining whatsoever regarding the terms and conditions of employment. Furthermore, the complainant alleges that these workers are denied the protection against anti-union discrimination and employer interference afforded in the LRA.

186. While not neglecting the importance it places on the voluntary nature of collective bargaining, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Digest, op. cit., para. 781]. Furthermore, the preliminary work for the adoption of Convention No. 87 clearly indicates that "one of the main objects of the guarantee of freedom of association is to enable employers and workers to form organizations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements". [See Digest, op. cit., para. 799.] As concerns protection against anti-union discrimination, the Committee notes that section 81(1) of Bill 7 only protects agricultural workers from discrimination in employment on the grounds that the person was a member of a trade union or had exercised or attempted to exercise any rights under the ALRA which was subsequently repealed by the 1995 Act. Thus, it appears that any union activity carried out by agricultural workers after the entry into force of Bill 7 would not be statutorily protected, nor would such activities carried out by the other groups of workers not covered by the protective provisions of the LRA. The Committee would recall in this respect the need to ensure by specific provisions, accompanied by civil remedies and sufficiently dissuasive sanctions, the protection of workers against acts of anti-union discrimination at the hands of the employer.

187. The Committee therefore considers that the absence of any statutory machinery for the promotion of collective bargaining and the lack of specific protective measures against anti-union discrimination and employer interference in trade union activities constitutes an impediment to one of the principle objectives of the guarantee of freedom of association, that is the forming of independent organizations capable of concluding collective agreements. It requests the Government to take the necessary measures so that agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors have access to machinery and procedures which facilitate collective bargaining and to ensure that these workers enjoy effective protection from anti-union discrimination and employer interference.

188. Noting further the complainant's allegation that the organizations which had already been created and recognized as bargaining agents in the agricultural sector and among professional employees (following the amendments which extended the application of the LRA to these workers) were decertified by virtue of sections 7(2) and 80(3) of Bill 7, the Committee requests the Government to take the necessary measures to ensure their re-certification and to keep the Committee informed of the progress made in this regard.

189. Finally, noting that the collective agreements pertaining to agricultural workers and professional employees which had been entered into by virtue of the pre-1995 version of the LRA were annulled under sections 7(3) and 80(2) of Bill 7, the Committee would recall 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 [see Digest, op. cit., para. 876]. The Committee therefore requests the Government to revalidate the collective agreements in question and to keep it informed of the progress made in this regard.

Crown employees and building services

190. The Committee notes that sections 15 and 23 of Bill 7 repeal the provisions of the Crown Employees Collective Bargaining Act (CECBA) which incorporated provisions of the LRA concerning successor rights and related or associated employers. Similarly, the application of successor rights provisions to building services is repealed by Bill 7. The Committee takes due note of the Government's indication however that the absence of applicable successor rights provisions does not take away the right of employees to unionize and to establish a collective bargaining relationship with the new employer following the sale and that the Government has undertaken certain contractual obligations aimed at protecting the rights of former Crown employees in sale situations.

191. As concerns Crown employees, while noting the Government's indication that Crown employees and building services workers would, despite the absence of applicable successor rights provisions, continue to enjoy the right to organize and to establish a collective bargaining relationship with the new employer following the sale of a business or change of contractor, the Committee would point out that proprietorial changes, in the absence of sufficient protective guarantees, may give rise to serious instability in labour relations and constitute a danger to the meaningful exercise of the right to organize. The Committee therefore welcomes the Government's indication that it has undertaken certain contractual obligations aimed at protecting the rights of former Crown employees in sale situations.

192. With respect to the repeal of successor rights' provisions concerning building services, the Committee notes the Government's indication that workers in the building services maintain their rights to organize and to bargain collectively. The Committee would, nevertheless, point out that, in the absence of sufficient protective measures, a new contractor could take actions which would threaten the right to organize and collective bargaining rights. It therefore requests the Government to take measures to ensure that these rights are adequately protected and to keep it informed in this regard.

193. Finally, 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

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

(a) As concerns the denial of the right to organize for agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors, the Committee requests the Government to take the necessary measures to ensure that these workers all enjoy the protection necessary, either through the LRA or by means of occupationally specific regulations, to establish and join organizations of their own choosing.

(b) As concerns the denial of the right to strike, the Committee requests the Government to take the necessary measures to ensure that this right is not denied to agricultural and horticultural workers, domestic workers, architects, land surveyors and lawyers and to ensure adequate compensatory guarantees where this right may be restricted in respect of the medical profession.

(c) As concerns the denial of machinery for collective bargaining and the absence of provisions protecting against anti-union discrimination and employer interference for agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors, the Committee requests the Government to take the necessary measures to guarantee access for these workers to machinery and procedures which facilitate collective bargaining and to ensure that these workers enjoy effective protection from anti-union discrimination and employer interference.

(d) As concerns the decertification of organizations of agricultural workers and certain specified professionals, by virtue of sections 7(2) and 80(3) of Bill 7, the Committee requests the Government to take the necessary measures to ensure that these organizations are re-certified and to keep the Committee informed of the progress made in this regard.

(e) As concerns the legislative annulment of collective agreements, the Committee requests the Government to revalidate the collective agreements pertaining to agricultural workers and professional employees which had been entered into by virtue of the pre-1995 version of the LRA and which were subsequently annulled under sections 7(3) and 80(2) of Bill 7 and to keep it informed of the progress made in this regard.

(f) The Committee requests the Government to take measures to ensure that the right to organize and collective bargaining rights are adequately protected in building services and to keep it informed in this regard.

(g) 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. 1917
Definitive report

Complaint against the Government of the Comoros
presented by
the Organization of African Trade Union Unity (OATUU)

Allegations: Arrest of trade union officials

195. The complaint contained in this case appears in a communication from the Organization of African Trade Union Unity (OATUU) dated 7 February 1997. The Government sent its observations in a communication dated 15 May 1997.

196. The Comoros 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

197. In its communication of 7 February 1997, the OATUU alleges infringements of freedom of association and the right to organize freely. It refers in particular to the arbitrary incarceration of two officials of the Union of Autonomous Trade Unions of Workers of the Comoros (USATC), Messrs. Ibouroi Ali Tabibou and Ahmed Abdou Halidi. According to the complainant, these two trade union officials were arrested for having organized a trade union meeting inside a private building. Furthermore, the trade union meeting was interrupted by force.

198. The complainant believes that the use of force to terminate the trade union meeting and the incarceration of union officials exercising their trade union functions are a flagrant violation of Conventions Nos. 87 and 98.

B. The Government's reply

199. The Government, in its communication of 15 May 1997, states that state security in the Comoros was under threat at the time when the trade union organizations, following unsuccessful negotiations with the Government, launched a strike.

200. Messrs. Ibouroi Ali Tabibou and Ahmed Abdou Halidi were summoned and questioned because of the threat against state security and the nature of the tracts issued by the trade union federation. These officials along with others immediately claimed that the trade union officials had been arrested and imprisoned for having organized a trade union meeting, and on behalf of their respective organizations they called a strike.

201. These two trade union officials were thus summoned for questioning and were not incarcerated. After being questioned by the police, no charges were brought against them and they were rapidly released.

C. The Committee's conclusions

202. The Committee notes that the allegations concern the arrest of two officials of the Union of Autonomous Trade Unions of Workers of Comoros, Messrs. Ibouroi Ali Tabibou and Ahmed Abdou Halidi, and the use of force to terminate the trade union meeting which they were holding.

203. The Committee notes that both the complaint and the Government's reply are couched in general terms, do not specify the date or place of arrest of the trade union officials concerned, how long the questioning lasted, or when they were released. The Committee regrets this lack of information since, in order to properly examine a complaint concerning the infringement of trade union rights, it must have at its disposal the precise information normally required for such a procedure.

204. The Committee notes however the Government's statement that the alleged events occurred following the failure of negotiations and because of the threat to state security. The Committee also notes the Government's statement that the officials concerned were not imprisoned but summoned for questioning -- in particular regarding the nature of the tracts issued by the trade union federation. The Government also states that the trade union officials were rapidly released and that no charges were brought against them.

205. The Committee recalls in this respect 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.] Moreover, in the Committee's view, the forcible intervention in trade union meetings constitutes a serious violation of freedom of association principles. Finally, the arrest of trade union leaders against whom no charge is brought involves restrictions on freedom of association, and governments should adopt measures for issuing appropriate instructions to prevent the dangers posed to trade union activities by such arrests. [See Digest, op. cit., para. 80.]

The Committee's recommendation

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

The Committee, considering that the arrest or questioning, even for short periods, of trade union officials for reasons related to their trade union activities and the interruption by force of trade union meetings are obstacles to the exercise of trade union rights, requests the Government to refrain from such action in the future and to take steps for appropriate instructions to be given to prevent the dangers posed to trade union activities by such arrests, questioning and interruption of trade union meetings.

Case No. 1923
Report in which the Committee requests
to be kept informed of developments

Complaint against the Government of Croatia
presented by
the Railwaymen's Trade Union of Croatia (RTUC)

Allegations: Violation of the right to strike,
discrimination based on trade union activities

207. The Railwaymen's Trade Union of Croatia (RTUC) presented a complaint against the Government of Croatia in a communication dated 7 February 1997, alleging violations of trade union rights. The International Transport Workers' Federation (ITF) expressed its support for the complaint in a communication dated 11 March 1997. Further information was received from the RTUC in a communication of 2 April 1997. In response to the allegations, the Government forwarded observations and information in a communication of 12 May 1997.

208. 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

209. In its communication of 7 February 1997, the RTUC alleges that the court decisions declaring unlawful a strike called by the RTUC violates the right of workers' organizations to organize their activities in full freedom. It further alleges that the public authorities unlawfully interfered in the strike. Finally, it claims that the Croatian Railways Act, 1994, contravenes principles of freedom of association as it restricts the right to strike of railway workers.

210. According to the complainant, it was involved in collective bargaining with Croatian Railways, a public enterprise, together with seven other trade unions, with the RTUC representing the largest proportion of railway workers. The negotiations broke down, resulting in the RTUC giving 10 days' strike notice, as required by law. Pursuant to the Croatian Railways Act, the Minister of Maritime Affairs, Transport and Communications ("the Minister") prepared a list of the trains that were to continue operating during the strike in order to maintain minimum railway service. This list covered 20 per cent of the trains. Before the commencement of the strike, the complainant maintains that it had not been consulted regarding the trains to be included on the list and had not officially received the list; therefore, it established its own list, including 21 per cent of the trains, which it submitted to the Minister together with the strike notice, and which it applied during the first few days of the strike (28 November to 1 December 1996). Once informed of the decision of the Minister, the complainant observed that list, until 3 December, at which time the complainant halted all railway traffic. The complainant states that this measure was taken in response to illegal pressure on and threats to striking workers, including management requesting each worker to give a statement confirming their participation in the strike, and the Vice-President of Croatia publicly stating that "There is nothing at all to negotiate because we have already met all your requests. You can strike until Easter -- but to your own detriment ...". Another stated ground for the action was that the management of Croatian Railways had contravened the Minister's decision by putting into operation trains that had not been listed, and doing so in such a manner as to jeopardize the lives of passengers and employees.

211. The complainant recommenced all passenger trains on 4 December 1996, and the minimum cargo traffic on 8 December. As a result of the stoppage on 3 December, Croatian Railways brought an action before the Supreme Court claiming that the strike was unlawful and asking that further strike action be prohibited. A copy of the Supreme Court decision of 9 December 1996 was appended to the communication of 7 February. The Court held that the strike had been organized and carried out in a manner contrary to the law; the complainant was ordered to put an end to the strike and to pay the costs of the legal proceedings. The Court found that the complainant had received the decision of the Minister defining the trains to remain operational and the tracks to be maintained during the strike and that the manner in which it had been received was irrelevant. Croatian Railways was deemed by law to be a public service of vital interest to the State; therefore, the Court noted that a number of preconditions needed to be met in order for the strike to be lawful. In the opinion of the Court, all the preconditions were met, with the exception of the requirement that the decision of the Minister defining the minimum service to be maintained during the strike be observed. In not fulfilling this precondition, the entire strike was rended unlawful.

212. The complainant appealed against the decision of the Supreme Court of First Instance. In its decision of 17 December 1996, a copy of which was appended to the complainant's communication, the appellate court upheld the lower court's decision on the basis that the complainant was obliged to observe the Minister's decision throughout the strike. The Court stated that the decision to interrupt the entire train service was contrary to the law "even in the case of unruly behaviour by the plaintiff, because unlawful conduct does not justify unlawful protection of one's rights and interests". The complainant claims that political influence was exerted on the Court to ban the strike as a warning to the public to refrain from strikes and demonstrations.

213. Based on the Court's decision declaring the strike unlawful, the complainant states that Croatian Railways summarily dismissed 24 employees who had been involved in organizing the strike, including four trade union officials. Croatian Railways also filed a claim against the RTUC for compensatory damages. Regarding the dismissed employees, as part of an agreement between RTUC and Croatian Railways to settle a second strike in January 1997, management agreed to withdraw the 24 dismissal notices.

214. The complainant also draws attention to the specific provisions of the Croatian Railways Act which states that "In order to protect the vital interests of the State, other legal personalities or citizens of a certain area, and in the case of a strike in the railway enterprise, the Minister shall define the trains that must run and the railway tracks that must be maintained in order to secure the essential services of the railway traffic. Employees performing jobs and tasks in the railway traffic that are defined as essential pursuant to the decision under paragraph 1 of this Article, have the obligation to carry out orders issued by the management during a strike." The RTUC asserts that in giving the Minister an unfettered right to determine which are the essential services that must remain operational during a strike, the law is contrary to principles of freedom of association. It notes that in response to a strike notice submitted by the complainant regarding another strike scheduled for 28 December 1996, the Minister redefined the minimum services to be provided, which covered 70-80 per cent of the regular train service.

215. In its communication of 2 April 1997, the RTUC brought to the attention of the Committee the fact that it had lodged a complaint with the Constitutional Court claiming that the above-noted provisions of the Croatian Railways Act violate the constitutionally guaranteed right to strike.

B. The Government's reply

216. In response to the allegations, the Government in its communication of 12 May 1997 notes that the right to strike is guaranteed by the Constitution and maintains that the law complies with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Government emphasizes that pursuant to the law, the question of the legality of a strike is referred to the competent court, and only a court is authorized to determine the facts and prohibit the strike if it is found to be unlawful. In the case at hand, the facts were duly examined by both the Supreme Court of First Instance and on appeal. The Government asserts that given the principle of the separation of powers between the legislative, executive and judicial arms of the Government, the judicial authorities are autonomous and independent and it would not be appropriate for the executive authority to explain or supervise the court decisions.

217. The Government declined to enter into the merits of the dispute regarding the issues that have already been determined by the Court. In response to the claim that 24 employees were dismissed due to their involvement in organizing the strike, the Government states that, to its knowledge, no employee was dismissed for such a reason. In this regard, the Government also draws the attention of the Committee to article 182 of the Labour Law which provides that trade union officers cannot be dismissed without the prior consent of the trade union.

218. The Government points out that there is no general law regulating strikes in the public service. Special laws establish which services are to be maintained and who is to determine the work that is to continue during the strike. The Croatian Railways Act specifies that the basic function of Croatian Railways is to provide for continuous and unobstructed railway transport of people and goods. Pursuant to the Act, the Minister is authorized to manage the rights pertaining to the country on the basis of its property, with a view to protecting vital interests of the State, other legal entities or citizens. On this basis, the Minister is empowered to determine which trains must remain functioning and which sections of the railway track must be maintained during a strike in order to ensure the basic functioning of railway traffic. Given the Government's ownership of the enterprise, and the concomitant right of the Minister to manage, the Government contends that statements of the Minister made regarding the railway are made in the capacity of someone representing the owner and not as a member of the executive of the Government.

C. The Committee's conclusions

219. The Committee notes that the allegations of violations of freedom of association in this case arise out of a strike called by the RTUC which was declared unlawful by the courts on the basis that the minimum services defined by the Minister pursuant to the Croatian Railways Act had not been maintained throughout the strike. As a result of the declaration that the strike was unlawful, the complainant alleges that a number of those involved in organizing the strike were dismissed.

220. The RTUC alleges that the Croatian Railways Act, 1994, empowers the Minister to determine unilaterally which trains are to operate and which tracks are to be maintained during a strike "to ensure the essential services of the railway traffic", and thus violates principles of freedom of association. According to the complainant, in one instance the minimum services designated included 20 per cent of trains, whereas in another similar situation, 70-80 per cent of trains were implicated. The determination of the Minister does not appear to be subject to appeal.

221. Regarding the right to strike, the Committee recalls that it is one of the essential means through which workers and their organizations may promote and defend their economic interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 474]. While accepting that the right to strike can be restricted or prohibited in essential services, essential services are to be strictly defined to mean those 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. 542]. In previous cases, the Committee has not considered transport in general, and railway services in particular, to be essential services [see Digest, op. cit., para. 545; 273rd Report, Case No. 1521, (Turkey), para. 39; 297th Report, Case No. 1788, (Romania), para. 358 ]. The Committee has recognized, however, that given the particular situation of the railway services of a country, a total and prolonged stoppage could lead to a situation of acute national emergency endangering the well-being of the population, which may in certain circumstances justify government intervention, for instance by establishing a minimum service [see 265th Report, Case No. 1438, (Canada), para. 401].

222. The Committee recalls with respect to the determination of minimum services that they are to be limited to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population. In addition, it is important that workers' organizations be able to participate, along with employers and the public authorities, in defining the minimum service [see Digest, op. cit., paras. 557-558]. In the case at hand, the Minister appears to have unfettered discretion regarding the determination of the minimum service to be maintained in the event of a strike; as a result, 20 per cent can be declared as the minimum in one case and 80 per cent in a similar case, showing that the determination is not limited to operations that are strictly necessary to avoid endangering life or normal living conditions. Nor was the RTUC, the trade union representing the largest proportion of railway workers, consulted regarding the determination of minimum services. The Committee recalls that the involvement of the relevant trade unions and employers' organizations allows not only a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions by the trade unions that a strike has not been effective due to over generous and unilaterally fixed minimum services [see Digest, op. cit., para. 560]. The Committee also considers that where there is disagreement as to the determination of minimum services, the legislation should provide for such disagreement to be settled by an independent body and not by the ministry or public enterprise concerned [see Digest, op. cit., para. 561]. The Committee requests the Government to modify the legislation accordingly. The Committee also draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

223. While noting with concern the dismissal of 24 employees involved in organizing the strike, the Committee observes that the workers have been reinstated and therefore considers that this aspect of the case does not call for further examination.

The Committee's recommendations

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

(a) The Committee requests the Government to amend the Croatian Railways Act, 1994, to ensure that minimum services to be maintained during a strike are limited to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population, and that the relevant workers' and employers' organizations are involved along with the public authorities in defining the minimum service. Where there is disagreement as to the minimum services to be maintained, the legislation should provide for settlement by an independent body. The Committee requests the Government to keep it informed of developments in this respect.

(b) The Committee draws the attention of the Committee of Experts to the legislative aspects of this case.

Case No. 1805
Definitive report

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

Allegations: Refusal to grant legal personality to a
trade union organization; detention of trade unionists

225. The Committee examined this case in its November 1995 and November 1996 meetings and on both occasions presented an interim report to the Governing Body [see 300th Report of the Committee, paras. 399-427, approved by the Governing Body at its 264th Session (November 1995) and 305th Report, paras. 206-228, approved by the Governing Body at its 267th Session (November 1996)].

226. The International Confederation of Free Trade Unions (ICFTU) forwarded new allegations in a communication dated 4 April 1997. The Government sent new observations in a communication dated 15 September 1997.

227. Cuba 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

228. When it last examined this case [see 305th Report, paras. 206-228], the question regarding the allegation of the Government's refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC) was left pending and the Committee formulated the following conclusions and recommendations [see 305th Report, paras. 226 and 228(b)]:

226. As regards the allegation that the Confederation of Democratic Workers of Cuba (CTDC) was not granted legal personality despite having submitted the appropriate documents, the Committee notes that the Government states that the inquiries carried out have ascertained that there is no trade union called the Confederation of Democratic Workers of Cuba in any enterprise or labour body in the entire country. In this respect, the Committee requests the Government to state expressly whether it has received the documents applying for the granting of legal personality to the CTDC mentioned by the complainant organization and, if so, to state what action has been taken. In this respect, and in view of the fact that several allegations in this case are related to trade unionists of the CTDC, the Committee would refer to one of its conclusions formulated at its previous examination of the case [see 300th Report, para. 420], reproduced below:

The Committee's recommendations

...
(b) As regards the allegation concerning the refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC), the Committee requests the Government to state whether it has received the documents applying for the granting of legal personality to the CTDC mentioned by the complainant organization and, if so, to state what action has been taken. In this respect, the Committee would refer to the comments of the Committee of Experts requesting the Government "to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent trade union organizations of their own choosing, outside any existing trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom (Article 3 of the Convention)".

B. New allegations of the ICFTU

229. In its communication dated 4 April 1997, the International Confederation of Free Trade Unions alleges the following facts as reported to it by the Confederation of Democratic Workers of Cuba (CTDC):

C. The Government's reply

230. In its communication of 15 September 1997, the Government states that on 2 January 1997, an application for official recognition of the self-proclaimed Confederation of Democratic Workers of Cuba as an independent trade union was submitted to the Ministry of Justice. According to the application document, the organization in question claims to represent its members before the various administrations and the Central Organization of Cuban Workers. According to the report of the Ministry of Justice, the document does not include the particulars of the persons forming the steering committee; gives no indication of the number of members forming the organization; does not indicate the body, agency or government office with which the organization would maintain relations as required by the relevant legislation in force; does not attach the statutes governing the organization's internal affairs; and is not accompanied by the statutory stamp duty.

231. The Government adds that, without determining the legitimacy of the aims of the application, the Ministry of Justice notes that, quite apart from the fact that the application does not comply with Law No. 54 of 27 December 1985 (Law on associations), the Law in question does not govern the establishment of trade unions.

232. The Government notes that in the application of 2 January 1997, it is stated that it is being made for the sixth consecutive year. However, only two previous applications are recorded in the Department of Associations of the Ministry of Justice with identical or similar names: one, dated 31 May 1993, from the Confederation of Workers of Cuba, and the other dated 27 August 1995, from the Confederation of Democratic Workers of Cuba. The signatories of these applications were not the same as those who signed the application of January 1997 currently under examination. For these reasons, the Ministry of Justice refused the application and notified the interested parties of its decision. The application was then filed in the archives.

233. With reference to the letter of the ICFTU dated 4 April 1997, the Government maintains that there is no truth whatsoever in the claim that it instigated a "wave of repressive measures". Inquiries carried out have shown that José Orlando González Budon, Gustavo Toirac and Rafael García Suárez are at liberty and enjoy full civil rights. They are not trade union officials and do not represent any group of workers.

234. Similarly, the Government considers it necessary to remind the Committee on Freedom of Association that the right of workers to form independent trade union organizations is acknowledged both in legislation and in practice. Section 13 of the Labour Code stipulates that "all workers, whether manual or white-collar, have the right without prior authorization to associate freely and form trade unions". Workers have the right to assemble, discuss and express freely their opinions on questions and issues which affect them; trade union organizations are managed and operated in accordance with the principles, regulations and statutes discussed and approved democratically by their members. All these guarantees are established in the Labour Code and exercised by the country's 19 national sectoral trade unions. These unions are affiliated to the Central Organization of Cuban Workers of their own free will, as expressed in their respective congresses, not because the law requires them to do so. Freedom of association is exercised without restriction in everyday practice at every workplace when workers and the representatives they have elected participate systematically in the decision-making process on any matters of concern to them.

235. The Government states that there is no trade union organization by the name of the Confederation of Democratic Workers of Cuba at any workplace in the country, and the persons mentioned by the ICFTU in its letter of 4 April 1997 are not trade union officials, have not been elected as such at any workplace and do not represent any group of workers. For these reasons, the Government requests the Committee on Freedom of Association to declare the case definitively closed.

D. The Committee's conclusions

236. The Committee notes that the questions raised by the complainant relate to the failure to grant official recognition to the Confederation of Democratic Workers of Cuba (CTDC) and to the temporary detention of three officials of that organization.

237. As regards the failure to grant official recognition to the Confederation of Democratic Workers of Cuba (CTDC), the Committee notes that, according to the Government, the application for recognition submitted by the CTDC to the Department of Associations of the Ministry of Justice does not comply with the Law on associations and, specifically, does not give any particulars of the persons forming the steering committee, gives no indication of the number of members, does not indicate the state body with which the organization would maintain relations, does not attach the organization's statutes and is not accompanied by the statutory stamp duty. However, the Committee also notes that the Government states that the law in question is not applicable to trade unions, that the right to form independent trade union organizations is recognized both in legislation and in practice and that under section 13 of the Labour Code all workers enjoy the right to associate freely and to establish trade union organizations without previous authorization.

238. Under these circumstances, the Committee requests the Government to guarantee the freedom of the CTDC to operate and to ensure that the authorities refrain from any interference aimed at limiting the exercise by that organization of fundamental rights recognized in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the exercise of human rights related to the exercise of trade union rights, including the right of individuals not to be subjected to measures depriving them of their freedom on grounds related to their legitimate activities.

239. In this case, the Committee refers to the second question left pending, namely, the detention on various days in February 1997 of three CTDC officials (José Orlando González Budon, Gustavo Toirac González and Rafael García Suárez) for calling on social organizations to form an independent workers' parliament. The Committee notes that the Government has not expressly denied either the fact that these detentions took place or the motives for the detentions, merely stating that the persons in question are at liberty and denying that they are trade union officials. Under these circumstances, given that the complainant has given details of the trade union responsibilities in the CTDC of the persons concerned, the Committee reminds the Government, as it has already done in its previous examination of the case [see 305th Report, para. 224], of the principle according to which "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 Committee on Freedom of Association, 4th (revised) edition, 1996, para. 77.] The Committee deplores the detentions in question and requests the Government to take measures to ensure that there will be no future recurrence of such measures depriving individuals of their freedom on grounds related to legitimate trade union activity.

The Committee's recommendations

240. 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 guarantee the freedom of the Confederation of Democratic Workers of Cuba (CTDC) to operate and to ensure that the authorities refrain from any interference aimed at restricting the exercise by that organization of the fundamental rights recognized in Convention No. 87 and the exercise of the human rights related to the exercise of trade union rights, including the right of individuals not to be subjected to measures depriving them of their freedom on grounds related to their legitimate activities.

(b) Deploring the detention on various days in February 1997 of three CTDC officials (José Orlando González Budon, Gustavo Toirac González and Rafael García Suárez) for calling on social organizations to form an independent workers' parliament, the Committee reminds the Government of the principle according to which "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". The Committee requests the Government to take measures to ensure that there will be no future recurrence of such measures depriving individuals of their freedom on grounds related to legitimate trade union activity.

Case No. 1911
Definitive report

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

Allegations: Dismissal of trade union officers;
smear campaign against trade union officers
and the trade union movement; and the
raiding of trade union premises

241. The complaints in this case are contained in two communications from the Latin American Central of Workers (CLAT) dated 20 November and 12 December 1996. The Government sent its observations in a communication dated 9 September 1997.

242. Ecuador 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

243. In its communication dated 20 November 1996, the Latin American Central of Workers (CLAT) states that the Chairman of the Board of PETROECUADOR has not spared any efforts in his persecution of the trade union organizations and their officers in the enterprises which make up the PETROECUADOR group; he has dismissed and engineered the dismissal of various workers, thus violating the guarantee of stability provided for in the collective agreements in force in the subsidiary enterprises of PETROECUADOR. In concrete terms, the complainant alleges the following:

244. Likewise, the complainant adds that the governing body of PETROECUADOR in an attack against freedom of association, issued resolution No. 270-CAD dated 8 October 1996 which sets out the following:

1. That the Inspector-General of State be requested to make a special examination of the expenditures of the trade union associations of the PETROECUADOR system and their revenues received:

(a) through subsidies made by PETROECUADOR and its subsidiaries, equivalent to 40,000 sucres annually for each workers covered by the respective collective agreements;

(b) through discounts of 1 per cent from each worker, and from special dues.

2. That an audit be carried out of the work and union leave of the representatives of workers' associations of PETROECUADOR and its subsidiaries, on the basis of the stipulations contained in the respective collective agreements ...

With regard to this resolution by the governing body of PETROECUADOR , the auditor-general of PETROECUADOR requested the officers of each one of the enterprise committees existing within the PETROECUADOR system to inform him about: the total amount of assets assigned by the enterprise, in fulfilment of the collective agreement, as established; the number of the current account and the banking institution in which these assets are managed; the programme of specific expenses to be met with these funds; and to indicate whether these assets are kept registered and administered separately from the contributions made by the workers as members of the union organization.

245. In its communication dated 12 December 1996, the Latin American Central of Workers alleges the dismissal of a high-ranking union officer of the PETROECUADOR enterprise. On 3 December, the executive chairman of PETROECUADOR (and legal representative of the said enterprise) went for an audience with the Provincial Labour Inspector of Pichincha to request the immediate dismissal of Mr. Iván Narváez Quiñónez, President of FETRAPEC (National Federation of Workers of the State Petroleum Enterprise of Ecuador) and officer of CETAPE (Single Enterprise Committee of Workers of PETROECUADOR). Having been notified of this decision, the union officer presented himself at the instructed time at the Pichincha Labour Inspectorate to contest this decision which he considered completely unfounded and illegal. Certain declarations by the Minister of Energy and Mines, in which he describes this union leader in very negative and disrespectful terms, lead CLAT to conclude that this dismissal -- like the previous ones -- also has an anti-union nature and moreover violates union immunity.

246. The complainant adds that, by order of the Minister of Energy and Mines, PETROECUADOR enterprise -- and specifically the union premises -- had been militarized, in violation of national laws. In this context, there is serious reason to fear for the life and physical integrity of the union officers in this enterprise. In view of what has been set out previously, the union officers of PETROECUADOR enterprise cannot freely carry out their activities in defence of workers' rights.

B. The Government's reply

247. In its communication dated 9 September 1997, the Government declares the following in connection with the allegations presented:

248. Finally, the Government states that the allegations presented all come within the period of the government of ex-President Abdalá Bucaram, and that the current Government, on the basis of the resolution issued by the National Congress on 5 February 1997, issued Executive Decree No. 92, published in Official Register No. 13, supplement dated 28 February 1997, and rectified all the illegal actions committed against workers by the previous government. Likewise, the Government states that currently relations between the workers and the bosses are carried out within a framework of cordiality and mutual respect, in accordance with the legal and contractual norms in force.

C. The Committee's conclusions

249. The Committee observes that the allegations refer to the dismissal of trade union officers in the enterprise PETROECUADOR, to a smear campaign against union officers of the Single Enterprise Committee of Workers of PETROECUADOR (CETAPE) and to declarations by the Minister of Energy and Mines against the union movement in the petroleum sector, to the interference of the management of PETROECUADOR enterprise in the financial administration of the trade union organizations of PETROECUADOR, and to the raid by military personnel of the union premises of PETROECUADOR enterprise. The Committee takes note that these actions took place during the mandate of the former president (dismissed by the National Congress on 5 February 1997) and observes with interest that the new Government has rectified most of the damaging actions and that the remaining matters have been submitted to the legal authorities.

250. With regard to the allegation about dismissals of trade union officers (Marcelo Román, Germánico Avila Acosta, Iván Narváez Quiñónez and Ms. Olga Chamba) in PETROECUADOR enterprise, the Committee notes with interest the Government's statement that the trade union officers in question have been reinstated in their jobs (the Government annexes to its reply a copy of the administrative decisions by which the reintegration of the trade union officers was arranged).

251. With regard to the allegation about the smear campaign against union officers and members of trade union organizations in PETROECUADOR enterprise (the complainant annexed to its complaint pamphlets of insulting content with pictures of a pornographic nature which had allegedly been distributed), the Committee takes note that the Government states that the victims of this offence denounced this action to the legal authorities.

252. With regard to the allegation about public declarations by the Minister of Energy and Mines in which he mentioned his desire to "eliminate unions from the petroleum sector", the Committee takes note that the Government confirms that the ex-minister in question hurled insults, slander and threats against the workers of PETROECUADOR enterprise and its unions as part of a state policy with a trend towards repressing the rights of the workers, but that the said situation ended once the National Congress relieved the President of the former Government of his functions on 5 February 1997.

253. With regard to the allegation about the interference of the PETROECUADOR enterprise authorities in the financial administration of union organizations, by virtue of the promulgation of resolution No. 270-CAD of the governing body of PETROECUADOR on 8 October 1996 (the text of the said resolution was transcribed in the allegations of the complainant; the said resolution sets out in general terms that the Inspector-General of State should make a special examination of the revenues and expenditures of the union organizations), the Committee takes note of the Government's statement that one of the union organizations of PETROECUADOR (CETAPE) presented an appeal for habeas corpus against the said resolution to the Constitutional Court, which is the body that must rule on the legality of the resolution, and that until the said body has reached a verdict the resolution in question is suspended.

254. In this connection, the Committee recalls that "the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 443]. The Committee likewise recalls that "as regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential" [see Digest, op. cit., para. 444].

255. On the other hand, the Committee cannot refrain from observing that the resolution in question was issued within the framework of a series of acts of discrimination against the trade union organizations of PETROECUADOR enterprise (dismissal of union officers, smear campaigns, etc.). In these circumstances, the Committee expresses the firm hope that the Constitutional Court will make its judgement in the near future and that its decision will take fully into account the requirements of Convention No. 87, ratified by Ecuador.

256. Finally, with regard to the allegation about the raiding of trade union premises in PETROECUADOR enterprise, the Committee takes note that the Government confirms the raiding and occupation by private security forces of the trade union premises and states that the new authorities of the enterprise arranged the handover of the premises to the trade union organizations once the Minister of Energy and Mines of the former government ceased in his duties.

The Committee's recommendations

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

(a) In connection with the allegations presented, the Committee takes note that these took place during the mandate of the former president (dismissed by the National Congress on 5 February 1997) and observes with interest that the new Government has rectified the majority of the damaging actions and that the remaining matters have been submitted to the legal authorities.

(b) With regard to resolution No. 270-CAD-96 dated 8 October 1996, issued by the governing body of PETROECUADOR, by which it was ordered that the Inspectorate-General of State should carry out a special examination of the revenues and expenditures of the trade union organizations of the said enterprise, the Committee expresses the firm hope that the Constitutional Court will make its judgement in the near future and that the decision will take fully into account the requirements of Convention No. 87, ratified by Ecuador.

 Case No. 1915
Definitive report

Complaints against the Government of Ecuador
presented by
-- the Confederation of Workers of Ecuador (CTE) and
-- the Latin American Central of Workers (CLAT)

Allegations: Interference by the administrative authorities
in a trade union election process

258. The complaints in this case are contained in a communication from the Confederation of Workers of Ecuador (CTE), dated 15 January 1997, and in a communication from the Latin American Central of Workers (CLAT), dated 18 August 1997. The Government sent its observations in a communication dated 9 September 1997.

259. Ecuador 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

260. In its communication dated 15 January 1997, the Confederation of Workers of Ecuador (CTE) states that the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL was established as set out in the second clause of the first non-numbered article contained in section 39 of Law No. 133 reforming the Labour Code. CONAUTEL has been representing the workers of EMETEL in negotiations and the signing of collective labour agreements. Likewise, its legal existence has been recognized and its authority to perform duties in other public organizations, by virtue of other laws, such as the special law on telecommunications, the law reforming the special law on telecommunications, and the law on the National Unemployment Fund of Workers of EMETEL. In order to comply with the provisions of the first clause of section 1, of Article 49 of the Political Constitution of Ecuador (which sets out that: "for all purposes of labour relations in bodies in the public sector, the labour sector shall be represented by one single organization"), CONAUTEL submitted its Statutes for approval by the Ministry of Labour and Human Resources: the said approval was implemented through Accord No. 210 and was registered in the General Directorate of Labour on 8 August 1996, thus constituting CONAUTEL as the only representative organization of workers in the public sector.

261. The complainant alleges that, in violation of freedom of association and its free development, guaranteed in the Constitution and laws of Ecuador, the Ministry of Labour authorities issued the Resolution dated 26 September 1996 in which it is set out that "the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, in compliance with the principles established in section 449 of the Labour Code, proceeds with the election of its Board with the participation of all the workers of EMETEL, for which its provisional Board must immediately carry out the corresponding call to vote ...". Although the administrative authorities did not have the authority to get involved in the activities of the union organization CONAUTEL, the latter proceeded to call for elections, since the Ministerial Resolution allowed the call to elections to be made by the union organization itself, under the supervision of the General Directorate of Labour, throughout the whole process of electing the Board in accordance with the provisions of Articles 5 and 6 of their Statutes. All of this was communicated to the Ministry of Labour in communication No. 239-96 CONAUTEL, dated 3 October 1996. In reply to this communication (No. 239-96 CONAUTEL), the authorities of the Sub-secretariat of Labour, yet again violating freedom of association, stated: "Permit me to remind you that any election process must be made jointly with the Director-General of Labour, therefore what you have carried out digresses from the terms of the ministerial resolution of 26 September 1996, and for this reason lacks validity." Subsequently, the Director-General of Labour issued an illegal and arbitrary instrument for elections to the Board of CONAUTEL, without knowledge of this body, and obliged the organization to sign an agreement for elections to the Board of CONAUTEL, setting up an electoral tribunal illegally and with persons foreign to CONAUTEL, with electoral lists which gave votes to people outside the organization.

262. The complainant adds that CONAUTEL contested the legality of this whole process, including the election of the Board itself, as being null and void; this challenge was made persistently but the call did not gain the attention of the Ministry of Labour authorities, despite having irrefutably demonstrated the legal and constitutional norms which had been violated.

263. In its communication dated 18 August 1997, the Latin American Central of Workers (CLAT) alleges that in its Resolution No. 016-2-97, the Constitutional Court of the Republic of Ecuador decided to suspend the results of the elections carried out by the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, organization affiliated to CEDOC/CLAT, and to allow an appeal presented by Ms. Greta Hoyos, the person who headed another list of workers during the union elections but did not manage to win the majority of votes. (The CTE supports the Board presided over by Ms. Hoyos.) The decision of the Constitutional Court of the Republic of Ecuador was preceded by strong support from the State Attorney General's office. In the union elections, Mr. Agapito Moreira, current President of CONAUTEL, came out as the winner, along with an Executive Committee made up of various workers from the enterprise EMETEL. None the less, the decision of the Constitutional Court disregards the results of these free and democratic elections.

264. CLAT adds that in order to demonstrate a clear case of violation of freedom of association it is necessary to present the following considerations: (1) firstly, Mr. Agapito Moreira, current President of CONAUTEL, and the other members of the Executive Committee of this organization of workers took on their duties following free and democratic elections which were supervised by the Ministry of Labour and Human Resources. This electoral process included the participation of Ms. Greta Hoyos, who headed the losing list. These elections were carried out within the legal norms in force in the country and totally in accordance with the principles set out in ILO Convention No. 87; (2) Mr. Agapito Moreira and the Executive Committee of CONAUTEL took possession of their posts in a ceremony which included the participation of the Minister of Labour and Human Resources, of other national authorities and of the top leaders of the Ecuadorean Central Organization of Class Organizations (CEDOC/CLAT); (3) the enterprise itself and CONAUTEL gave their full recognition to the new Board of CONAUTEL; and (4) Ms. Greta Hoyos had recourse on several occasions to various types of political influence to try to establish non-recognition of the new Board of CONAUTEL and the legal powers themselves rejected her false claim. So, it is alarming to receive information which demonstrates that the Constitutional Court and the State Attorney-General are involved in issues which are the exclusive affair of the workers, such as the election of their own appropriate authorities, thus making themselves directly responsible for an act of open interference in the internal affairs of a trade union.

265. The Latin American Central of Workers (CLAT) states that in resolution No. 016-2-97, the Constitutional Court openly adjudicates the duty of President and legal representative of CONAUTEL to Ms. Greta Hoyos, thereby negating the result of the free and democratic elections held by CONAUTEL, dated 11 December 1996. In fact the first point of the Resolutions of the Constitutional Court states the following: to accept the appeal presented by Ms. Greta Hoyos (President and legal representative of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL) to the President of the Constitutional Court. Finally, the complainant states that the national authorities interfered in the internal affairs of a union organization, disregarding the results of free and democratic elections carried out by the workers of the enterprise EMETEL and naming a person to represent the workers of the said enterprise.

B. The Government's reply

266. In its communication dated 9 September 1997, the Government declares the following with regard to the complaint presented by the Confederation of Workers of Ecuador (CTE):

(1) both the Resolution of 26 September 1996, calling for the election of the Board of CONAUTEL, and the "instruction for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL" dated 29 October 1996, merited sanction in law, thus suspending their implementation by the Constitutional Court, the supreme body of constitutional control, in accordance with the precepts of the law on constitutional control, the principal aim of which is to ensure the efficacy of constitutional norms;

(2) the Constitutional Court, through Resolution No. 016-2-97, issued on 12 June 1997, and published in Official Register No. 93, dated 24 June 1997, accepted the appeal presented by Ms. Greta Hoyos Jaramillo and allowed the proposed appeal for habeas corpus, and as a consequence suspended the administrative acts mentioned in the previous paragraph;

(3) Resolution No. 016-2-97, issued by the Constitutional Court, by express order of the Constitution of the Republic of Ecuador, does not have retroactive effect and governs from the date of its publication in the Official Register, consequently the suspended administrative acts lost their effect and legal sway subsequent to that publication and could not be invoked and applied in the future, but this does not affect firm legal cases established under the protection of the said administrative act before it was revoked. (Article 26 of the law on constitutional control and Article 176 of the Political Constitution of the Republic of Ecuador);

(4) the Ministry of Labour and Human Resources of Ecuador, at that time was not able to attend to the requests made by the complainants because some contested legal decisions were still pending, and were about to be clarified on the basis of the Constitution; moreover, in deference to the norms contained in ILO Convention No. 87, this Ministry was forbidden from interfering in matters concerning unionization;

(5) the Ministry of Labour of the Republic of Ecuador, through Ministerial Accord No. 320, dated 14 August 1997, ordered the Director General of Labour to fulfil the requirements of Resolution No. 016-2-97 of the Constitutional Court, published in Official Register No. 93, dated 24 June 1997, an order which was completely fulfilled by the said authorities;

(6) on 19 August 1997, in consideration of the request presented by CONAUTEL, taking as a precedent the National Assembly of CONAUTEL, held on 14 August 1997, the Coastal Subdirectorate of Labour proceeded to register (by its authority enshrined in the Labour Code) the Board of CONAUTEL presided over by Ms. Greta Hoyos Jaramillo, entered in Register 09, file 155, No. 701.

267. With regard to the complaint presented by Latin American Central of Workers (CLAT) the Government states that:

(1) on 11 December 1996, CONAUTEL, in view of Resolution No. 26, dated September 1996, issued by the Minister of Labour and of the "instruction for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL", dated 29 October 1996, elected their Board presided over by Mr. Agapito Moreira, who was entered in the registers of the Ministry of Labour and Human Resources of Ecuador, in the Department of Labour Organizations, on 8 January 1997 in Register 03, file 01, No. 003;

(2) the unchanging administrative acts of the Resolution of 26 September 1996, issued by the Minister of Labour and the "instruction for the elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL", dated 29 October 1996, were suspended by the Constitutional Court, through Resolution No. 016-2-97, issued on 12 June 1997, and published in Official Register No. 93, dated 24 June 1997;

(3) Resolution No. 016-2-97, issued by the Constitutional Court, by express order of the Constitution of the Republic of Ecuador, is not effective retroactively and governs for the future from the date of its publication in the Official Register, consequently the suspended administrative acts lost their effect and legal sway subsequent to this publication, not being able to be invoked and applied in the future, but this does not affect firm legal cases established under the protection of the said administrative acts before they were revoked (Article 26 of the law on constitutional control and Article 176 of the Political Constitution of the Republic of Ecuador);

(4) the Ministry of Labour of the Republic of Ecuador, through Ministerial Accord No. 320, dated 14 August 1997, ordered the Director-General of Labour to carry out the provisions set out in Resolution No. 016-2-97 of the Constitutional Court, published in Official Register No. 93, dated 24 June 1997, an order which has now been fulfilled by the authority in question;

(5) on 19 August 1997, in view of the request presented by CONAUTEL, and taking as a precedent the National Assembly of CONAUTEL, held on 14 August 1997, the Coastal Subdirectorate of Labour proceeded to register, by virtue of its authority enshrined in the Labour Code, the Board of CONAUTEL presided over by Ms. Greta Hoyos Jaramillo, and entered it in Register 09, file 155, No. 701;

(6) a claim challenging the registration of the Board presided over by Ms. Greta Hoyos, presented by Mr. Agapito Moreira, is currently in hand; the competent authority to adjudicate this claim is the Coastal Subdirector of Labour, in accordance with the provisions of the relevant norms of the "Statute of the legal administrative regime of the executive function", issued through Executive Decree No. 1634 and published in Official Register No. 411, dated 31 March 1994, second supplement. The case has reached the stage where it is pending resolution by the aforementioned authority, and following the pronouncement issued by the Coastal Subdirector of Labour, a legal appeal can be made if either of the parties considers themself adversely affected.

C. The Committee's conclusions

268. The Committee observes that the allegations in this case are set in the context of a conflict between two union sectors in the process of elections to a union Board. Although the CTE (which supports the Board presided over by Ms. Greta Hoyos) alleges interference by the administrative authorities in ordering, by means of a Ministerial Resolution a call for elections to the Board of the Single National Central Committee of Workers of EMETEL -- an act which was successfully challenged before the Constitutional Court -- the CLAT (which supports the Board presided over by Mr. Agapito Moreira), on the contrary objects to the decision of the Constitutional Court in this connection.

269. With regard to the allegation presented by the CTE about interference by the administrative authorities in calling by means of the Ministerial Resolution of 26 September 1996, for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, the Committee takes note that the Government states that: (i) the application of the Ministerial Resolution convoking the elections was suspended by decision of the Constitutional Court on 12 June 1997, on acceptance of an appeal made by Ms. Greta Hoyos (who heads one of the lists for service on the Board of CONAUTEL); (ii) the Ministry of Labour ordered the Director-General of Labour to implement the ruling of the Constitutional Court; (iii) on 19 August 1997, at the request of CONAUTEL, the administrative authority proceeded to register the Board presided over by Ms. Greta Hoyos.

270. With regard to the criticism by CLAT of the decision of the Constitutional Court ordering the non-application of ministerial resolution of 26 September 1996, which called for elections to the Board of CONAUTEL, the Committee observes that it can be seen from the Government's reply that the list for service on the Board of CONAUTEL headed by Mr. Agapito Moreira came out as the winner in the elections called by means of the Ministerial Resolution, and that after the decision of the Constitutional Court which ordered the non-applicability of the Ministerial Resolution and the subsequent registration of the Board headed by Ms. Greta Hoyos, Mr. Agapito Moreira presented a claim contesting the registration before the administrative authority, and that according to the Government, when this authority pronounces its judgement, whichever of the parties that considers itself to be adversely affected by the judgement will be able to make an appeal to the legal authorities.

271. In this context the Committee wishes to recall that "the Committee is not competent to make recommendations on internal dissensions within a trade union organization, so long as the Government did not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. In cases of this nature when there have been internal dissensions, the Committee has also pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned" [see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 965]. Given that there was in the first instance interference by the Ministry of Labour in the election process, although it was subsequently remedied through judicial channels, the Committee underlines that "the right of workers to elect their representatives freely should be exercised in accordance with the statutes of the occupational associations and should not be subject to the convening of elections by ministerial resolution" [see Digest, op. cit., para. 393]. In these circumstances, the Committee trusts that in future the administrative authorities will abstain from interfering unduly in the exercise of the right of the workers' organizations of the EMETEL enterprise to freely elect their representatives, as guaranteed by Convention No. 87.

The Committee's recommendation

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

The Committee trusts that in future the administrative authorities will abstain from interfering unduly in the exercise of the right of the workers' organizations of the EMETEL enterprise to freely elect their representatives, as guaranteed by Convention No. 87.

 Case No. 1919
definitive report

Complaint against the Government of Spain
presented by
-- the Federation of Public Services of the General Union of Workers (FSP-UGT)
-- the State Federation of Teaching Staff (FETE-UGT) and
-- the Federations of the Public Area of the Trade Union
Confederation of Workers' Commissions (CC.OO)

Allegations: Non-compliance with a clause of a collective agreement in the public sector

273. The complaint appears in a communication dated 31 January 1997 from the Federation of Public Services of the General Union of Workers (FSP-UGT), the State Federation of Teaching Staff (GETE-UGT) and the Federations of the Public Area of the Trade Union Confederation of Workers' Commissions (CC.OO).

274. The Government replied in a communication dated 5 June 1997.

275. Spain 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), the Labour Relations (Public Services) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

276. In their communication of 31 January 1997, the Federation of Public Services of the General Union of Workers (FSP-UGT), the State Federation of Teaching Staff (FETE-UGT) and the Federations of the Public Area of the Trade Union Confederation of Workers' Commissions (CC.OO) allege that the Government unilaterally took the decision not to increase the remuneration of public employees for the 1997 exercise and to keep the salaries of these employees at the same levels as those of 1996. These resolutions were communicated on 19 September 1996 to the General Bargaining Committee and incorporated into the text of the draft budget for 1997. This decision, adopted in an authoritarian manner, without the possibility of any appeal, implies a real negation of the right of collective bargaining -- which is recognized by Spanish law and by ILO standards -- and is contrary to a pre-existing pluri-annual agreement concluded on 15 September 1994 between the previous Government and all the trade unions of public employees participating in the General Bargaining Committee. This agreement includes an increase in remuneration for civil servants for 1997, subject to the evolution of certain economic indicators, and the scope of which would be determined by collective bargaining. The Government does not deny the validity of the agreement but -- in a flagrant disregard of its contents -- has already incorporated in the draft budget a zero increase for civil servants and a clause invalidating any pact or agreement contrary to this measure.

277. This unilateral imposition is illegal as well as unjust, since it discriminates against public employees as regards other workers and excessively increases the salary sacrifices which these officials have already been making and which have resulted in a serious deterioration in their standard of living in recent years.

278. The complainants state that the Government maintains that its decision is part of a supposed austerity plan required for the convergence at the Community level of the economies of the European Union towards a single currency. However, this is a mere pretext, since the same pluri-annual agreement, which has now not been implemented, already provided for a significant wage moderation based on these economic circumstances: according to the agreement, "Remuneration shall be linked to the development of economic indicators and the achievement of targets which, set forth in the Convergence Programme, shall be included in the General State Budgets. This will ensure the establishment of a framework of stability in which remuneration is linked to the real capacities of our economy, while the improvement of the situation in the public sector, the achievement of better results in the different programmes and a general increase in productivity should pre-suppose the existence of incentives and additional salary growth."

279. The complainants state that after a process of negotiation between the Spanish State Administration and the most representative trade union organizations in the public sector, held in 1994 in accordance with the provisions set forth in Act No. 7 of July 1990 respecting collective bargaining and participation in the determination of conditions of employment of staff in the service of the public administrations, an Administration-Trade Unions Agreement on conditions of employment in the public service was concluded for the period 1995-97, which was signed on 15 September 1994. The objectives of the Agreement -- which were endorsed at the time by all parliamentary groups in Congress -- were to modernize the careers of public officials and adapt them to the new legal framework of the autonomous State, to establish a framework for the evolution of salaries for the period 1995-97 which was balanced and in line with the overall economic situation of the State and, finally, to establish a link between all these aspects and the convergence programmes of the European Union.

280. The Administration-Trade Union Agreement for the period 1995-97 is the result of concessions by both parties (Administration and Trade Unions), and should be seen as a bilateral contract containing mutual concessions and the programming of other matters to be examined in a spirit of good faith throughout the period in which the Agreement remains in force, as specified in paragraph 4 of Title I (Chapter I): "This Agreement shall enter into force on the day following its publication and shall remain in force throughout the years 1995, 1996 and 1997."

281. The matters to be examined in this respect include the increase in salaries for 1997, as set forth in Title II (Chapter VI), paragraph 2, of which expressly stipulates that increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions: "Increase in remuneration for 1996 and 1997. (1) The remuneration of public employees for 1996 and 1997 shall be increased in accordance with the budgetary forecast of the increase in the consumer price index for the respective periods. Furthermore, account shall be taken of the following: the accuracy of the forecasts of the previous exercise and achievement of the objectives on which the previous increase in remuneration was based; the forecast of economic growth and the financing capacity of the General State Budgets as determined in the light of the forecast of the budgetary deficit of the public administration as a whole; the assessment of the increase in productivity in public employment resulting from the development of specific actions or programmes; the evolution of wages and employment in the country as a whole. (2) The application of increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions. (3) For each exercise a fund shall be set up for ensuring the maintenance of purchasing power in line with the characteristics established in Chapter III of this Agreement, and subject to the evolution of the GDP and the budgetary deficit of each year."

282. This important Agreement has not only been applied and developed to date within the geographical sphere and workforce for which it was conceived, but, through a process of adhesion and extension, now covers many other groups (including most of the institutions of local and provincial administration and health institutions) and bodies of public employees. Hence non-compliance with the Agreement will have prejudicial effects of a general nature for the public sector as a whole and result in a widespread climate of frustration and loss of confidence in the collective bargaining machinery and the process for the peaceful settlement of labour disputes.

283. There is no doubt whatsoever about the legitimacy and legal force of the Administration-Trade Union Agreement for the period 1996-97; neither is there any doubt that this contract makes it an obligation for the Administration to negotiate with the trade unions concerning the increase in salaries for 1997. The Government has failed to apply the Agreement by eluding its obligation to bargain and by unilaterally ordering a zero increase in remuneration for public employees.

284. Chapter VI quoted above does not specify the amount of the salary obligation for 1997. But the Administration agreed to undertake negotiations with the trade unions, including on an increase -- to some extent -- of the salaries of public employees for 1997 in relation to the consumer price index (section 1, paragraph 1); the conditioning of this increase on specific economic indicators (section 1, paragraph 1); and the determination of the applicable increase in remuneration by collective bargaining (section 2). However, this bargaining process has not been respected by the Government, which decided not to increase the salaries of public employees in the year 1997, disregarding its own commitments, despite the fact that all the economic indicators, to which the above-mentioned salary increase should be subject, are favourable. This favourable evolution can be seen as follows:

285. The complainants add that the process of blocking and paralyzing negotiations on the part of the Government, which resulted in a serious labour dispute and a one-day general strike in the sector on 11 December 1996, began with an initial statement of intentions which seemed positive and hopeful. Indeed, on 19 July 1996, the General Bargaining Committee held a meeting at which the representatives of the authorities and the trade unions expressed in written form that the Administration-Trade Unions Agreement for the period 1995-97 should continue to provide an adequate framework for dialogue and consensus in the sector. On the basis of this it was agreed: "to negotiate within the General Bargaining Committee in September the increase in remuneration to be included in the draft legislation for the General State Budgets for 1997, and to examine and discuss the content of the texts affecting the civil service and to be included in the respective legislation".

286. After this initial meeting, a second meeting was held on 24 July 1996, followed by work programmes for the proposed bargaining process. However, surprisingly, on the following day -- 25 July 1996 -- the officials of all the trade unions in the public services were summoned and informed by the Secretariats of State (for Public Administration, Budget and Expenditure) of the decision adopted by the Government not to increase the salaries of public employees for 1997. The communication of what was called "a salary freeze" for public employees in 1997 was in fact a unilateral decision by one of the parties which was not subject to appeal or to any reservation or any other alternative. In such a situation, all the trade unions of the public sector took action which resulted in the general strike in the sector on 11 December 1996 -- noted above -- calling for a resumption of negotiations and compliance with the pluri-annual Agreement in force. Furthermore, the complainant trade unions initiated legal proceedings in the administrative courts, demanding compliance with the above-mentioned Agreement by the Government.

287. The complainants then go on to describe in detail the criticisms made against the Government's attitude by three parliamentary groups and the call for negotiation by another group.

288. Precisely because it lacks the political will to negotiate, both within and outside Parliament -- despite the clear demands of the trade unions and the parliamentary groups -- the Government maintained its unchanging position in its draft budget proposals for 1997, which state that: "With effect from 1 January 1997, the full remuneration of staff in the public sector may not undergo any variation with respect to that of 1996, with homogeneity being maintained for the two periods of comparison, both as regards staff numbers and seniority. Agreements, conventions or pacts which result in increases in remuneration should be adapted accordingly, failing which any clauses which are contrary to the present section shall become null and void."

289. In the same way, in support of their complaint, the complainants explain in detail Spanish legislation and case-law as regards collective bargaining.

290. The complainants point out that one of the contradictions of the Government lies in its statement that it recognizes the validity of the pre-existing Agreement and that it is ready to negotiate within the framework of this Agreement, whilst at the same time establishing within its budget proposals a zero increase for the 1997 exercise and declaring the non-applicability of any pact or agreement which is contrary to this decision. Such conduct is contrary to both positive labour law and the standards of administrative and civil law. The Agreement which has not been implemented was not concluded by the present Government but by a previous Government of a different political orientation, although such circumstances in no way diminish its validity or its effects. There seems no doubt that the party with which the trade unions concluded the Agreement is the administration, the State itself, and of which the signatory Government was at the time merely a representative and agent. The respect of collective bargaining agreements -- including that of the salary increases of public employees for 1997 -- should at least be the same as that applicable to any civil, administrative or labour contract. The complainants believe that the Government has infringed the exercise of the right to collective bargaining for public employees by blocking any negotiation on salary increases for 1997. It has merely informed the political officials of the trade unions that the salary increase for 1997 will be zero and that this decision is not subject to discussion.

291. According to the complainants, the Government has violated the Administration-Trade Unions Agreement for the period 1995-97 which it none the less recognizes as valid and in force, and has thus infringed ILO Conventions Nos. 98, 151 and 154.

B. The Government's reply

292. In its communication of 5 June 1997, the Government states that the complaint indiscriminately refers to the supposed infringements of international commitments entered into by Spain with the signature of ILO Conventions Nos. 98, 151 and 154 -- which may be denounced before the Committee on Freedom of Association -- and the alleged infringements of the internal standards of Spanish law, established on the basis of these international principles, and which fully apply the above-mentioned Conventions up to the maximum limits allowed by the Constitution and the rational organization of the administrations of the country. In these circumstances, the Government's reply to the complainant will be systematically divided into two parts: first, as regards the non-existence of infringements to the general principles of the International Labour Organization for the determination of the conditions of employment for public employees, which is the only relevant part as regards the analysis of the substance of the complaint in question. Second, the lack of any infringements of the Spanish legal system established in application and development of these principles, an irrelevant aspect as regards the real question at stake which, however, the Government says it will take up in its reply, since the Spanish administration wishes to establish clearly its strict respect of the legislation in force in its own country.

293. The Government adds that in order to examine whether there have been infringements of ILO principles respecting collective bargaining, it is necessary to establish clearly first what these principles are in the light of all the Conventions of the Organization respecting freedom of association which have been ratified by Spain. The Government then lists the basic principles of Conventions Nos. 87, 98, 135, 151 and 154. It indicates that an analysis of these Conventions and, in particular of Convention No. 98, with respect to workers in the service of the administration, and No. 151, as regards public officials, shows that collective bargaining freedom is not an absolute principle and is subject to specific limitations resulting from the public nature of the employer. Thus, Article 7 of Convention No. 151, which is applicable to the General Bargaining Committee, which determines the conditions of employment of public employees, merely establishes the following: "Measures appropriate to national conditions shall be taken, when necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters."

294. In order to clarify the content and scope of this principle, the clear and didactic classification criterion established by the French treaty expert, Saint-Jours, should be used to distinguish between the various degrees of such participation by public employees: a first level would be mere "consultation" or the granting of a hearing of a preceptive but not binding kind. Another higher degree of intervention would be that of "concertation" or agreement between the parties, the content of which would only constitute an obligation or take the form of a gentleman's agreement whereby the Administration undertakes to reflect the content of any such agreement in regulatory standards. The highest degree of participation would consist of "bargaining" proper, in which what has been agreed between the parties acquires a normative value and is applicable directly at the juridical level without the need for any legalization by any formal standard.

295. A careful analysis of the text of the above-mentioned Article 7 of Convention No. 151, in the light of these classification criteria, clearly shows that the international commitments entered into by Spain do not oblige it to engage in any "bargaining", in the strict sense of the term, of the conditions of employment of public employees, since, apart from "bargaining" in the strict sense, "other methods" of participation are allowed, including those which are covered by "consultation" or "concertation" defined above.

296. Following this clarification of the basic principles maintained by the International Labour Organization with respect to the systems for determining the regulation of the conditions of employment of public employees, an analysis should be made of the degree to which the Spanish administration is complying with these principles, including the degree of compliance with such international requirements, both in the general policy adopted by the Government of the nation in its collective relations with its employees and in the specific measures concerning the salary freeze for 1997.

297. As regards the general compliance of Spanish policy regulating collective relations in the public service with ILO principles, it should be noted that although its international commitments require it only to establish a system which provides some degree of participation by public servants in the fixing of their conditions of employment, the Spanish State has developed much more advanced collective relations than the minimum levels required by establishing at both the theoretical and legislative levels, as well as in everyday practice, a system of "social dialogue" which is one of the most progressive in Europe and the world. In this respect, as regards legal regulation, the Spanish Parliament has opted for a more advanced position than that required under its international commitments set forth in the text of Chapter III of Act No. 9 of 12 June 1987 (in particular following its amendment under Act No. 7 of 1990), through a genuine "bargaining" (i.e. with force of law) of practically all the aspects which may affect the conditions of employment of its employees. Thus, the new wording of section 32 of the above-mentioned legal text established a genuine "universalization of negotiable subjects", in which matters concerning collective relations which are not subject to legal reserve shall be subject to a genuine "bargaining reservation", except for a minimum number of specific exceptions to the obligation to bargain, which are contained in section 34(1) of the above-mentioned Act. The Spanish standards on the subject can be summarized as follows: the current regulations contained in Chapter III of Act No. 9 of 12 June 1987 not only comply with the minimum requirements concerning the autonomy of bargaining required by articles 7 and 28 of the Spanish Constitution and by ILO Conventions Nos. 151 and 154, but in fact exceed these minimum standards and establish an absolute freedom of collective bargaining (practically equivalent to that existing at the labour level), as a result of both the above-mentioned almost universal nature of the matters which may be negotiated (section 32 of this chapter, in listing these matters, establishes in paragraph K an open-ended and fully comprehensive generic supposition) and the binding force of what is agreed as established in section 35 of the above-mentioned Act No. 9 of 1987, provided that in the agreements -- in which the bargaining is not with the titular authority holding such power but with a representative of the same with decision-making powers -- there exists an express and formal ratification by such titular authority.

298. Furthermore, the standards in force on this subject establish the maximum limit which can be granted by the government body within its powers, namely the negotiation of the content of draft legislation. Indeed, in matters subject to "legal reserve", the present wording of Act No. 9 of 1987 establishes -- without extra limitations -- the maximum degree to which the social partners in the bargaining committees can participate in negotiations with the Administration, namely the content of draft legislation on such matters, which the latter -- through the Executive -- is authorized to place before Parliament (Cortes generales) under section 10(2) of the Act respecting the juridical regime of the state administration. In this respect, the role of the social partners may not exceed this limit and they may not negotiate with the Administration on a matter which is not within the power of the latter, in accordance with the obvious and traditional principle of "nemo dat quod no habet" (one cannot give what one does not have) -- such as the final content of an Act, since this remains within the sovereign competence of Parliament.

299. As regards the practice of bargaining in the public service, there has over the last ten years -- that is since the publication of the above-mentioned Act No. 9 of 1987 -- been a veritable "Copernican revolution" in staff policy. Before the promulgation of this Act, a strictly statutory regime was in place in which the Administration unilaterally determined the conditions of employment of its employees, without there being even any kind of non-binding consultation with the representatives of the latter, whereas with the introduction of this legal reform, a genuine "social dialogue" has been established with its staff.

300. Thus in the last decade, negotiations have been held on not only almost all the possible aspects directly concerning the conditions of employment of public employees (salary increases, administrative careers, continuous training, hours of work and work schedules, occupational safety, etc.), but on those organizational matters which indirectly affect such conditions of employment (public employment vacancies, workplace relations, administrative situations, provision of workplaces, employment plans, etc.). This has resulted in the establishment of a progressive system of labour relations which in some cases has led to a "participatory democracy" in the management of public services, tantamount to a veritable "co-management" with the Administration.

301. As proof of this intense and profound negotiation activity, mention may be made of the fact that in the central services of the State Administration alone, following the signature of the Agreement of 16 November 1991 -- which contained standards for the organization and promotion of collective bargaining -- a total of 331 meetings have been held by the (general and sectoral) bargaining committees, or the various commissions and work groups set up. As a result of this bargaining activity, since that time -- i.e. over a period of five and a half years -- 20 major standard-setting agreements at the state level have been signed, 38 meetings have been held providing information on proposed administrative provisions (Royal Decrees, ministerial orders, instructions, etc.) and 16 other meetings have dealt specifically with employment plans in public bodies, etc.

302. This bargaining activity continues today and within the sphere of competence of the Directorate General of the Civil Service (i.e. excluding the sectoral committees), 16 bargaining forums have been established and are fully operational, as follows: General Negotiation Committee; Central Administration Committee; General Committee on Continuous Training; Committee on Remuneration and Employment Committee; Joint Committee on the Framework Agreement for External Staff; Joint Committee on Occupational Health and Social Action; Working Group on Competitions; Working Group on Consolidation; Working Group on the Public Service Statute; Working Group on Remuneration and Employment; Working Group on Titularization; Working Group on Working Time and Schedules; Working Group on External Staff; Working Group on Promotion; Working Group on the Extra-judicial Settlement of Disputes; and the Working Group on Transfers.

303. In conclusion, the general policy of the Spanish Administration not only respects the principles of the ILO concerning freedom of association and collective bargaining, but has established a genuine "social dialogue" which has radically changed the system of labour relations with its employees, as can be seen clearly in the ruling of the National High Court (Audiencia Nacional) of 11 December 1990.

304. As regards the compliance of the decisions respecting the "salary freeze" for 1997 with the principles of the ILO in this specific case, the Spanish Administration did not limit itself to mere consultation or concertation -- which would be the minimum common denominators required by the ILO -- but undertook a genuine process of negotiation in two phases:

305. In this sense, there was a genuine process of bargaining for the fixing of the above-mentioned increase in remuneration for 1997 in which, however, the Administration was obliged to maintain a strictly restrictive interpretation of the guidelines previously agreed in 1994. Thus it was understood that the situation regarding the economic indicators on which the final fixing of the annual increase depended required sacrifice -- painful but necessary -- from its public employees, in order to meet the minimum criteria of economic convergence with the European Union. In this way, this decision was not a caprice by the Administration but was part of the public deficit adjustment policy which must be observed and which other members of the Union have had to adopt for the same reasons.

306. This process of determining by consensus the conditions of employment of public employees began with the meeting of the General Bargaining Committee on 19 June 1996, which established a timetable for negotiations and comprised an initial exchange of views on the subject, which was continued by the meeting of the Committee on 19 September 1996, which examined the matter in greater detail, with the Secretaries of State responsible for the budgets and expenditure of the public administration setting forth the reasoned arguments of the Administration on the matter in a debate in which all the representative trade unions took part. This negotiation process concluded with a meeting of the Committee on 3 December 1996, in which the Administration made an alternative proposal concerning remuneration to break the deadlock in the negotiations, but which was not accepted by the trade unions.

307. The above-mentioned description of events shows that in this specific case the Spanish Administration not only complied with the provisions of the above-mentioned Article 7 of ILO Convention No. 151, which merely prescribes, as a minimum, "methods as will allow representatives of public employees to participate in the determination of these matters", but engaged in genuine negotiation based on its conviction of the need for a genuine "social dialogue", but necessarily limited by its obligation to protect the predominant general interests which required moderation of the public deficit.

308. In this respect, the conduct of the Spanish Administration with regard to this matter did not infringe the principles of freedom of association defended by the ILO and endorsed by Spain. Indeed, the Government has not infringed any final agreement with the representatives of its staff, since what was agreed on a pluri-annual basis in Chapter VI of the text of 15 September 1994 did not specify the actual amount of the increases in remuneration for the various years -- including 1997 -- but established only guidelines for determining such annual increases. Such criteria, which were based on a reference parameter (the consumer price index forecast for the exercise) and which were subject, in their turn, to correcting indicators either upwards or downwards, depending on the evolution of certain prescribed economic factors, were interpreted by the Administration in a restrictive manner which was not accepted by the trade unions in the negotiations held to reach an agreement on the subject. In the same way, even if, for the purposes of the argument, the hypothesis was adopted that the agreement of Chapter VI of the text concluded on 15 September 1994 was of a final and firm nature, what was agreed was subject to modification in the light of priority factors of general interest which have arisen in the meantime, such as those concerning the need to meet the requirements of European convergence, as interpreted by the Government.

309. Although the public administrations are "employers" with respect to the legal and statutory relationship with its public officials or as regards the labour and contractual link with its dependent workers, they are employers of a sui generis kind which do not have the same bargaining freedom as that of private employers who manage their own funds, because in addition to being employers they are also the legitimate representatives of broader interests which take precedence over those of their own employees, such as the general interests of all citizens.

310. This means that an agreement which has been concluded, perfected and endowed with all the requirements for its application -- which is not the case here -- may legitimately prove to be inapplicable in a given economic context because its application would be contrary to the above-mentioned general interests. In this respect it can be stated as an undeniable -- and even evident -- prior theoretical principle that the commitments entered into by the Administration with its public employees (which reflect the legitimate but limited and corporative interests of the latter) must be subject to the higher interests of the State (such as the general interests of all citizens, which did not exist at the time of the negotiations but which emerged subsequently).

311. Another different matter which could hypothetically be raised -- although it does not affect the case in question -- concerns whether a decision by the Executive not to apply what had been previously agreed with its staff -- by being a discretional but not arbitrary act -- should take the form of an administrative act with reasons adduced, pursuant to the provisions of section 89(3) in conjunction with section 54(1)(f) of Act No. 30 of 26 November 1992, respecting the juridical regime of the public administrations and the common administrative procedure, and thus subject to appeal before the courts, if the latter declared themselves competent to examine a "political act".

312. Furthermore, it must be clearly established that the Government may not -- as a result of the existence of prior commitments -- sidestep its non-renounceable right to exercise the powers of the State in determining "the general planning of economic activity", which are assigned to it under article 149.1.13 of the Spanish Constitution.

313. The principles set forth in this paragraph have been clearly and expressly recognized by the jurisprudence of the Constitutional Court, which in the third legal grounds of its ruling No. 96/1990 indicated limitations to the principles of collective bargaining affecting public employees, which do not constitute -- as compared with private workers -- an infringement to the principle of equality, by stating literally that:

314. This position is also confirmed by the ruling of the Constitutional Court of 8 April 1981, which establishes with respect to collective agreements -- a doctrine which may also be applied by analogy to agreements with public employees -- that the non-application of the contents of such agreements does not constitute an infringement of the constitutional rights to freedom of collective bargaining and the respect of the binding force of the agreements, established in article 37 of the Constitution, if reasons arise resulting from the priority which must be accorded to the highest interests of the State. The ruling states:

Furthermore, several rulings of the ordinary courts establish that what is agreed and perfected at the labour level -- and by extension as regards public employees -- may be derogated by the standards of necessary law, issued in the general interest, such as the ruling of the Supreme Court of 9 June 1991, as well as numerous rulings by the higher courts of justice.

315. Finally, and for the purpose of the argument, even if it were assumed that the principles of the ILO required genuine collective bargaining (an interpretation which does not match reality, in the light of Article 7 of the above-mentioned Convention No. 151), the Spanish Administration would appear to have met this requirement, since it engaged in a genuine bargaining process, although it was not possible to reach an agreement during this process.

316. Indeed, in the light of the events described, the Administration made an effort to reach an agreement -- including through the proposal of alternative solutions -- by adopting an attitude which in Anglo-Saxon law is called the "duty to bargain", i.e. an active approach encouraging bargaining, although no final agreement may be reached. In this respect, it should be noted that the duty to bargain -- which does not exist in the principles of the ILO, although it does exist in the Spanish legal system -- does not necessarily imply the duty to reach an agreement, since this would invalidate the freedom of the parties to engage in collective bargaining.

317. The matter must be examined on the basis of the fact that the ILO Committee on Freedom of Association may and must examine alleged infringements of the general principles respecting freedom of association established at the international level, but logically it does not have the power to rule on possible specific infringements of positive law resulting from the development of such principles by countries which have signed the respective international agreements, especially when, as in the case of Spain, such principles have been developed in such a way that conditions are granted which are more favourable than the minimum conditions required by the ILO in this respect. Thus, it can be considered that the complaints presented by the complainant trade unions have been sufficiently addressed with the remarks set forth in the previous paragraph. However, the Spanish Administration would also like to establish clearly (although it is not essential to the substance of the complaint presented) that neither has there been any infringement of the Spanish legal system established in application and development of the international Conventions which regulate the subject. In this respect, recapitulating some of the arguments and allegations expressed above, the matter can be summarized in the following manner:

318. Thus the Spanish Administration was obliged as a result of its political responsibilities to apply, as regards the salary increases for 1997 -- in the corresponding negotiations -- a salary freeze in the light of the economic indicators affecting the convergence criteria of the Maastricht Treaty, a position which does not appear to have been unjustified in terms of political timeliness, in the light of various subsequent events, including: the most recent statements by the political officials of the European Union on the improvement and practical application by Spain of the conditions for convergence, a situation which has undeniably been affected by this measure, especially as regards the "public deficit"; and the endorsement of such measures by the Spanish Parliament, which represents the legislative power, and is an expression of the general will and the only body which has final decision-making powers on this matter.

319. The Government concludes by pointing out that the Spanish Administration has not infringed any salary agreement respecting a specific increase in remuneration for 1997 -- for the simple reason that there was no such agreement -- but that during the negotiations to determine the increase in salaries for the said exercise, it was obliged to maintain a restrictive interpretation of the guidelines adopted on a pluri-annual basis in the agreement of 15 September 1994 respecting the remuneration of public employees and that it was required to do so in a firm and resolute manner since the general interests (of which the Government is the legitimate representative and agent in the application of the basic principles of democracy) must take precedence over the individual interests (which are legitimate, but of a more restricted and corporative nature) of its own employees. For all these reasons, the Spanish Administration believes that it has fully complied with its international commitments entered into with the signature of ILO Conventions Nos. 98, 151, 154 and that it has not infringed in this case or in any other the rights to freedom of association or collective bargaining which it has freely undertaken to respect, and that the complaint presented by the complainants should be declared unreceivable.

C. The Committee's conclusions

320. The Committee observes that in this case the complainants allege that the Government has not complied with the clause concerning the increase in remuneration for 1997 under the "Administration-Trade Unions Agreement for 1995-97, respecting conditions of employment in the public service", concluded on 15 September 1994. The complainants emphasize that this Agreement obliges the Administration to negotiate with the trade unions the salary increase for 1997, the amount of which would be fixed within the framework of bilateral negotiations and subject to specific economic parameters. However, the complainants add, the Government prevented any kind of bargaining in this respect and merely informed the trade unions that the wage increase was zero and that this decision was not subject to any discussion.

321. The Committee observes that the Government states on the other hand that there was negotiation with the trade unions and refers in this respect to a bargaining process with a timetable of discussions, various meetings, the opening of a debate in which it explained its position and an alternative proposal on the matter of remuneration made on 3 December 1996. The Government denies that it has not complied with the Administration-Trade Unions Agreement (which made bargaining obligatory but did not specify the precise and negotiated amount of the increase in remuneration) but points out that it maintained a strictly restrictive interpretation of the guidelines contained in the Agreement for determining the annual increases, and that it maintained the salary freeze for 1997 in the negotiations and that its interpretation of these criteria was not accepted by the other party. The Government denies that it has infringed the principles of collective bargaining, national legislation and ratified ILO Conventions, makes a distinction between the duty to bargain (i.e. an active approach which encourages bargaining) and the duty to reach an agreement, and justifies its position as regards the salary freeze on the basis of: (1) the requirements of the Maastricht Treaty (in particular the necessary adjustment of the public "deficit"); (2) the precedence which must be given to the general interests of all citizens (such interests did not exist when the Administration-Trade Unions Agreement was negotiated but arose subsequently) over the interests of public employees; and (3) the powers of the State in the general planning of economic activity established by the Constitution. Finally, the Government recalls that the Labour Relations (Public Service) Convention, 1978 (No. 151), apart from negotiation, permits other methods for determining the conditions of employment of public employees, and states that Spanish legislation has opted for negotiation, has considerably extended the matters covered by collective bargaining and has given binding force to such agreements, placing the country in an advanced position with respect to the provisions of the above-mentioned Convention, making it one of the most progressive systems in the world.

322. Before examining the specific questions raised by the complainants, the Committee would like to point out that Article 7 of Convention No. 151 does indeed enable States to choose between "machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organizations" and "other methods as will allow representatives of public employees to participate in the determination of these matters". However, the Committee emphasizes that when national legislation opts for the negotiation machinery, as in the case of Spain, the State must ensure that such machinery is applied properly and that it is for the ILO supervisory bodies to monitor this application.

323. More specifically, as regards the allegations concerning the non-compliance by the Government of the clauses of the Administration-Trade Unions Agreement on the increase in remuneration for 1997, the text of the relevant parts of the agreement is as follows:

Introduction

(...)

CHAPTER VI

Increase of remuneration for 1996 and 1997

1. The remuneration of public employees for 1996 and 1997 shall be increased in accordance with the budgetary forecast of the increase in the consumer price index for the respective periods.

Furthermore, account shall be taken of the following: the accuracy of the forecasts of the previous exercise and achievement of the objectives on which the previous increase in remuneration was based. The forecast of economic growth and the financing capacity of the General State Budgets as determined in the light of the forecast of the budgetary deficit of the public administrations as a whole. The assessment of the increase in productivity in public employment resulting from the development of specific actions or programmes. The evolution of wages and employment in the country as a whole.

2. The application of increases in remuneration shall be the subject of negotiation between the Administration and the Trade Unions.

3. For each exercise a fund shall be set up for ensuring the maintenance of purchasing power in line with the characteristics described in Chapter III of this Agreement and subject to the evolution of the GDP and the budgetary deficit of each year.

324. In this respect, the Committee has noted earlier that the Government pointed out that it adopted a strictly restrictive interpretation of the guidelines contained in the Administration-Trade Union Agreement and that during the respective negotiations it maintained the salary freeze (a position which furthermore was finally incorporated into the draft legislation for the General State Budgets of 1997 and subsequently adopted into law). The Committee cannot but note however that the agreement concluded between the Administration and the unions expressly mentions salary increases for 1995, 1996 and 1997 without nevertheless indicating a strict quantification or definitive obligation for 1997 salaries. This is indicative of why the unions considered that the pluri-annual agreement concluded for the period 1995-97 had not been respected for 1997. In these circumstances, the Committee regrets that no increase whatsoever in the remuneration of public servants for 1997 was conceded, not even for those who have the lowest salaries.

325. In this context, the Committee recalls that the right to bargain collectively is one of the procedures mentioned in Convention No. 151, ratified by Spain, and that this procedure has been retained in Spanish legislation for determining the labour relations in the public service. The Committee therefore expresses the firm hope that the Government, in accordance with its own national legislation, will have recourse to collective bargaining in order to determine the conditions of employment of public servants. Furthermore, the Committee must emphasize that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.

The Committee's recommendations

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

(a) The Committee regrets that no increase whatsoever in the remuneration of public servants for 1997 was conceded, not even for those who have the lowest salaries.

(b) The Committee expresses the firm hope that the Government, in accordance with Spanish legislation, will have recourse to collective bargaining in order to determine the conditions of employment of public servants. Furthermore, the Committee must emphasize that mutual respect for the commitment undertaken in the collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.

 Case No. 1888
Interim report

Complaint against the Government of Ethiopia
presented by
-- Education International (EI) and
-- the Ethiopian Teachers' Association (ETA)

Allegations: Death, detention and discrimination of trade unionists, interference in the internal administration of a trade union

327. Education International (EI) and the Ethiopian Teachers' Association (ETA) presented a complaint against the Government of Ethiopia in a communication dated 6 June 1996, alleging violations of trade union rights. Further information was received from the complainants in communications dated 19 November 1996 and 21 August 1997. The Government forwarded information in communications dated 26 May 1997 and 29 August 1997.

328. Ethiopia 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 complainants' allegations

329. In a communication of 6 June 1996, the EI and ETA allege that the Government has refused to recognize the duly elected leadership of ETA, has interfered in its internal organization and has prevented it from functioning normally and freely. Further, the complainants allege a number of acts of intimidation and anti-union discrimination.

330. The complainants state that when the Transitional Government took power, ETA was restructured, new leaders were elected, and it was recognized by the Government. Subsequently, a breakaway group of ETA was registered and recognized by the Government as "the Ethiopian Teachers' Association". The Government had the membership fees transferred to the rival group and froze the complainant's accounts. The complainants contend that the ETA has effectively been suspended by administrative authority and that the Government has supported the establishment of an alternative to ETA with the object of placing that organization under its control. The elected leadership of ETA expressed their willingness to submit to new elections to confirm who the teachers wanted to represent them; however, the rival group would not agree. The complainants state that in December 1994 the Court of Ethiopia ruled that the leaders elected and led by Dr. Woldesmiate, President of the complainant organization, were the legitimate leaders of ETA. The rival group lodged an appeal of this decision, however the hearing has been adjourned until 22 July 1998. The complainants suggest that the judge who initially ruled in ETA's favour was dismissed, making other judges wary of dealing with the case.

331. According to the complainants, the elected leaders of ETA were dismissed from their employment, as were a number of active members. The list of those purportedly dismissed is attached as Annex 1. The 134 regional offices of ETA were closed and thousands of teachers have been transferred, with more transfers having been announced. It is stated that as of 4 January 1997, 84 members of ETA were in detention for their active participation in ETA. The list of those purportedly detained is attached as Annex 2.

332. The complainants allege that on 28 May 1995, Dr. Taye Woldesmiate, President of ETA, was arrested without any formal charges being laid. The complainants suggest that the arrest was related to the fact that Dr. Woldesmiate had been invited to the United States to attend the General Assembly of the National Education Association. Dr. Woldesmiate's visa for the United States had been revoked. In early June 1995, Dr. Woldesmiate was released. He was detained again on 29 May 1996, again with no formal charges having been laid at that time. In its communication of 19 November 1996, EI states that Dr. Woldesmiate remains in custody, having been charged with conspiracy against high level personnel. EI states that these charges are part of an attempt by the authorities to break the ETA. EI also expresses concern regarding the conditions of Dr. Woldesmiate's imprisonment. According to EI, he was kept in solitary confinement unable to receive visitors until August 1996, at which time he was given restricted visiting privileges of half an hour, two days a week. He had been handcuffed 24 hours a day, however, due to international protest, he is no longer shackled. In their most recent communication, the complainants note that on 28 February 1997 the two most serious charges against Dr. Woldesmiate were dismissed by the Federal High Court. However, he remains in prison pending the determination of the remaining charge of incitement to armed uprising.

333. It is further alleged that police and security forces forcibly entered ETA's head office on 19 March 1996, harassing those in the office and assaulting and arresting Mr. Ato Abate Angore, an ETA Executive Board Member. The police and security forces broke into the offices of the ETA President and General-Secretary and seized some personal and ETA documents. No reason was given or authorization shown for the search and seizure. Mr. Ato Abate Angore was released on 24 April 1996. During the same period, the complainants state that the police broke into Dr. Woldesmiate's residence and seized personal property. Two police officers remained in the house, prohibiting his family from contacting relatives or others. On 22 March 1996, the police also searched Mr. Woldesmiate's father's home.

334. In their communication of 21 August 1997, EI and ETA cite further developments since the complaint was initially lodged. It is alleged that at 8.20 a.m. on 8 May 1997, Mr. Assefa Maru, ETA Assistant Secretary for development cooperation and Executive Council member, was killed by police as he walked to work, unarmed and making no attempt to resist or flee. The Government has refused to hold a public inquiry into the killing. According to the complainants, immediately following the killing ETA's offices were raided, 34 of the people found on the premises were detained and virtually all documents were seized. Further, a programme on a government-owned television station showed the names of ETA Executive Council members taken from a report of an Executive Council meeting, as if they were part of another document purportedly from an illegal terrorist organization. As a result of this broadcast, the ETA General Secretary, Mr. Gemoraw Kassa, fearing for his life, was forced to seek asylum in the United Kingdom.

335. The complaints further contend that recent harassment of ETA members includes the introduction of an evaluation system which provides for the assessment of teachers by non-professional, governing party members. One teacher in Eastern Shoa is alleged to have been killed as a result of the conflict arising from this evaluation system. The Government has also refused to negotiate or consult with ETA on this issue.

336. The EI sent a mission to Ethiopia from 18 to 24 May 1997. While refusing to meet officially with the members of the mission, Prime Minister Meles agreed to meet with one member of the delegation as a private individual. The Prime Minister stated that he was prepared to reopen discussions with ETA, providing they agree to renounce violence, uphold the Constitution and reject any association with terrorist organizations. The complainants state that ETA is willing to make such an agreement, since it reflects its own commitment to peaceful and democratic ways of working. The complainants further underline that they will do everything possible to ensure that dialogue does resume between the Government and ETA, while noting that the difficulties will be considerable, due to the prevailing culture of an absence of negotiation and compromise.

B. The Government's reply

337. The Government states that Dr. Woldesmiate and others are accused of having undertaken an armed rebellion and of terrorist activities against the Government, contrary to the Penal Code of Ethiopia, and not for their membership in ETA or other trade union activities. The Government asserts that the Police Force Central Bureau discovered that a terrorist organization, led by Dr. Woldesmiate, had been established, which was "involved in jeopardizing the peace and the security of the land, performing armed robbery on government and business organizations, performing terrorist activities on foreign nationals and inflicting damage on government officials and on those whom they consider supporters of the Government". It notes that the criminal cases are pending before the Central High Court.

338. Regarding the conditions of detention of Dr. Woldesmiate, the Government states that he is not singled out in solitary confinement, he is well treated like other prisoners and is permitted to receive visits from relatives and colleagues for one hour, twice a week.

C. The Committee's conclusions

339. The Committee notes that the allegations in this case concern very grave violations of freedom of association which can be divided into two categories. First, government interference in the administration and functioning of ETA; secondly, killing, detention and discrimination of members and leaders of ETA.

340. EI and ETA allege that the Government refused to continue recognizing ETA, choosing instead to recognize a rival group and to register it under the same name. The complainants further allege that the Government has frozen ETA's accounts, transferred the membership fees earmarked for ETA to the rival group and closed down ETA's regional offices. The Committee notes with regret that the Government has not replied to these allegations and requests it to do so urgently. According to the complainants, the Court of Ethiopia upheld ETA's claim, though it appears that the Government was not willing to give effect to the decision pending the outcome of the appeal, which is now scheduled for 22 July 1998. The Committee further urges the Government to assist in having the appeal procedure expedited, and in the meantime to recognize ETA according to the Court's judgement. It also requests the Government to keep the Committee apprised of the status of the appeal and to forward to it a copy of the decision once it has been rendered. Regarding the introduction of an evaluation system for teachers, the Committee urges the Government to consult with ETA on this matter to ensure that it is not used as a pretext for acts of anti-union discrimination, and in this regard the Committee expresses its hope that the preliminary discussions commenced during EI's mission will give rise to a true dialogue between the parties.

341. In the light of the allegations set out in the previous paragraph, the Committee reminds the Government of the importance of the right to inviolability of trade union premises and the right to protection of trade union funds against intervention by the public authorities [see resolution on trade union rights and their relation to civil liberties, International Labour Conference, 1970; see also Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 174 et seq.]. The Committee also recalls that the freezing of union bank accounts may constitute a serious interference by the authorities in trade union activities [see Digest, op. cit., para. 439].

342. The further allegations involve various action taken against ETA members and officials, including killing, arrest, detention, harassment, dismissal and transfer. These allegations are closely linked to those stated above in that together they indicate a pattern of repressive government action against ETA. The Committee recalls that the rights of workers' organizations can only be exercised in a climate free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for the Government to ensure that this principle is respected [see Digest, op. cit., para. 47].

343. The Committee notes that the Government has limited its replies to a few statements regarding Dr. Woldesmiate's arrest and detention. The Committee notes with deep regret that the Government has not made any specific comments on any of the other allegations raised by the complainants. Given the serious nature of the complaints, the Committee urges the Government to provide information urgently regarding those listed in Annex 1 who were allegedly dismissed, those listed in Annex 2 who were allegedly detained, as well as information on the assault and arrest of Mr. Ato Abate Angore and the alleged harassment of Dr. Woldesmiate and his family. Further information regarding the arrests and detention of Dr. Woldesmiate is also requested, in particular the dates of the arrests, the date on which charges were laid and the facts on which the arrests and charges were based.

344. In view of the seriousness of the allegations regarding the arrest and detention of trade union leaders and members, the Committee would like to stress that such arrest and detention, even for reasons of internal security, may constitute serious interference with trade union rights unless attended by appropriate judicial safeguards, including being informed at the time of the arrest of the reasons for the arrest, promptly notified of any charges, and brought without delay before the appropriate judge [see Digest, op. cit., paras. 84, 93-95]. It further recalls that the arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 76]. In view of the length of time that Dr. Woldesmiate has been detained, the Committee urges the Government to ensure he is brought to trial without any further delay or is released.

345. On the issue of the dismissal of trade union leaders and members, the Committee recalls that no person is to be prejudiced in his or her employment due to trade union membership or legitimate trade union activities [see Digest, op. cit., para. 690]. Given that all the leaders of ETA were dismissed, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against. The Committee, therefore, urges the Government to take the necessary measures to ensure the reinstatement of those workers in their jobs, if they so desire, with compensation for lost wages and benefits.

346. Regarding the death of Mr. Assefa Maru, ETA Assistant Secretary for development cooperation and Executive Council member, the Committee strongly urges the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators if any wrongdoing is found. The Committee requests the Government to keep it informed of the outcome of the inquiry.

The Committee's recommendations

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

(a) The Committee recalls that the right of workers' organizations can only be exercised in a climate free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for the Government to ensure that this principle is respected.

(b) The Committee urges the Government to provide information urgently regarding (i) the allegations of interference in the administration and functioning of the ETA; (ii) the decision of the Court of Ethiopia regarding the leadership of ETA and its intention to comply with that decision; (iii) those allegedly dismissed, listed in Annex 1; (iv) those allegedly detained, listed in Annex 2; (v) the alleged assault and arrest of Mr. Ato Abate Angore; (vi) the arrests and detention of Dr. Woldesmiate, including the dates of the arrests, the date on which charges were laid and the facts on which the arrests and charges were based.

(c) In view of the length of time that Dr. Woldesmiate has been detained, the Committee urges the Government to ensure he is brought to trial without any further delay or is released.

(d) The Committee urges the Government to assist in having the appeal procedure expedited and in the meantime to recognize ETA in line with the Court's decision, and to keep the Committee apprised of the status of the appeal and to forward to it a copy of the decision once it has been rendered.

(e) The Committee also urges the Government to consult with ETA regarding the introduction of an evaluation system on teachers to ensure that it is not used as a pretext for acts of anti-union discrimination, and expresses its hope that a true dialogue between the parties will soon be established.

(f) The Committee urges the Government to take the necessary measures to ensure the reinstatement of the leaders of ETA in their jobs, if they so desire, with compensation for lost wages and benefits.

(g) The Committee strongly urges the Government to ensure that an independent judicial inquiry into the death of Mr. Assefa Maru is carried out immediately to determine the facts, establish responsibility and appropriately punish the perpetrators if any wrongdoing is found, and requests the Government to keep it informed of the outcome of the inquiry.

Annex 1

Members of ETA purportedly dismissed

 

Mulugheta W/Quirqos
Ketema Belachew
Mesfin Mengistu
Ayke Asfaw
Yohanns Tola
Alemayehu Melake
Abeta Anghure
Sira Bizu
Eyassu Albezo
Eshato Denege
Tesegaye Hunde
Taye W/Semayat
Ghemoraw Kasa
Shimellis Zewde
Adinew Ghetanhun
Aweqe Mulugheta
Aseffa Maru
Abate Anghure
Tesfaye Shewaye
Negatu Tesfaye

Ghebeyaw Niguse
Ghetachew Feysia
Asrat Woldeyes
Taye Mekuria
Alemayehu Tefera
Alemayehu Haile
Worku Tefera
Mekonnen Bishaw
Befekadu Degifie
Ayele Terfie
Alemayehu Haile
Tsehay B. Sellassie
Assefaw Desta
Messay Kebede
Taddese Beyene
Seifu Metaferia
Hailu Araya
Admassu Wassie
Sebhat M/Hazen
Mekonnen Dilgassa

Solomon Terfa
Tamiru Hawando
Fesseha Zewdie
Dawit Zewdie
Ayele Tarekegn
Fekade Shewakena
Aklilu Taddese
Aynalem Ashebir
Berhanu Bankashie
Lealem Berhanu
Huluanten Abate
Mekuria Asffa
Feleke Desta
Solomon Wondwossen
Shiferaw Agonafir
Zerihun Teshome
Mendaralew Zewdie
Meskerem Abebe

 

ETA Executive Committee Members and regional officers,
purportedly dismissed

Dr. Taye Woldesmiate -- President of ETA since April, 1993
Mr. Abate Angorie, Members Affairs Officer since January 1993, Addis Ababa, March 1993
Mr. Gemoraw Kassa, Secretary General of ETA, since July 1993, Addis Ababa
Mr. Shimelis Zawdie, Assistant Secretary General of ETA, since July 1993, Addis Ababa
Mr. Adinew Getahun, Administrative and Finance Officer, since July 1993, Addis Ababa
Mr. Awoke Mulugeta, Humanitarian Services and Supplies Officer, since July 1993, Addis Ababa
Mr. Asefa Maru, Cooperative Services Officer, since July 1993, Addis Ababa
Mr. Mulatu Mekonnen, Art and Research Department Officer, since July 1993, Addis Ababa (recently reinstated)
Mr. Muhammed Umer, South Wollo, February 1994
Mr. Fekadu Negash, South Gonder, June 1994
Mr. Alula Abegaz, North Wollo, September 1994

Annex 2

Members of ETA alleged to have been repeatedly detained
for their active participation in ETA

 

Ato Gennene H/Silasie
Ato Moges Taddese
Ato Ashenafi Legebo
Ato Mohammed Ussien
Ato Yibellae
Ato Endalkachew Molla
Ato Mohamed Umer
Ato Mekonnen Dawud
Ato Wogayehu Tessema
Ato Wollee Ahmed
Ato Yimam Ahmed
Ato Sollomon H/Silsie
Ato Sisay Mitiku
Ato Limenih Nienie
Ato Nikodmos Aramdie
Ato Ambachew W/Tsadik
Ato Demeke Seifu
Ato Wondimu Bekele
Ato Sollomon Tesfaye
Ato Zewdu Teshome
Ato Girma Tolossa
Ato Gemoraw Kassa
Ato Adinew Getahun
Ato Shimelis Zewdie
Ato Getaneh Abebe
Ato Merkebu Taddesie
Ato Mudisu Yasin
Ato Bekele Abay

Ato Hailu Derso
Ato Ketema Belachew
Ato Getachew Feyisa
Ato Gebeyaw Nigusie
Ato Assefa Maru
Ato Ashenafi Mengistu
Ato Getinet Asnake
Ato Befikadu Firdie
Ato Baye Abera
Ato Desta Titto
Ato Woreyelew Demissie
Ato Dessie Keffele
Ato Tarekegn Terefe
Ato G/Hiywot Gebru
Ato Fekade Nidda
Ato Mulugeta W/Kiros
Ato Mohamed Seid
Ato Wondafrash Millon
Ato Melessie Taye
Ato Ali Mengesha
Ato Mesfin Mengistu
Ato Alemayehu Melake
Ato Yohannes Tolla
Ato Aykie Asfaw
Ato Alemu W/Silasie
Ato Fikru Melka
Ato Workneh Dinssa
Ato Assefa Geleta

Ato Kebede Aga
Ato Wubie Zewdie
Ato Asfaw Tessema
Ato Abate Angorie
Ato Eshetu Deneke
Ato Bekele Mengistu
Ato Kinfie Abate
Ato Tomas Egzikuret
Ato Sollmon Girma
Ato Fereja Feleke
Ato Demissie Tesfaye Haile
Ato Gizachew Balcha
W/t S/Wongel Belachew
Ato Yigzaw Mekonnen
Ato Fekadu Negash
Ato Tesfaye Daba
Ato Diana Kefeni
Ato Berrecha Kumssa
W/ro W/Yesus Mengesha
Ato Tamirat Daba
Ato Futa Sori
Ato Legesse Lechissa
Ato Admasu W/Yesus
Ato Abbie Dessalegn
Ato Shukie Dessalegn
W/ro Tewabech H/Michael
Dr. Taye W/Semiat
Ato Alemu Desta Ketema

Case No. 1908

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

Complaint against the Government of Ethiopia
presented by
-- the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) and
-- the Confederation of Ethiopian Trade Unions (CETU)

Allegations: Occupation of trade union premises, physical assault on a trade unionist and forced removal of elected trade union leaders

348. The Committee already examined the substance of this case at its March 1997 meeting, when it presented an interim report to the Governing Body [see 306th Report, paras. 439 to 461, approved by the Governing Body at its 268th Session (March 1997)].

349. The Government forwarded further observations on the case in a communication dated 29 August 1997.

350. Ethiopia 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

351. The International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) presented allegations to the effect that members of the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF), backed by security and police personnel, forcefully occupied the offices of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP), an affiliate of FIET. FIET further contended that since 1994, the EPRDF had succeeded in turning seven of the nine federations affiliated to the Confederation of Ethiopian Trade Unions (CETU) into pro-government organizations and that it was now trying to silence the only two independent federations left, including the FCTP.

352. The Confederation of Ethiopian Trade Unions (CETU) further alleged that the Treasurer of the FCTP had been physically assaulted by EPRDF members and that the elected trade union leaders of the FCTP had been forcibly removed. Finally, according to CETU, the Executive and Audit Committees of eight pro-government federations, in collusion with the Government, decided on 4 January 1997, to reorganize CETU anew and to establish a coordinating committee to administer its property and assets. CETU pointed out that it had appealed to the Labour Division of the Federal High Court over the question of the cancellation of its registration by the Ministry of Labour and that the case was still pending before the High Court which had yet to render a final decision.

353. In its reply, the Government indicated that neither the EPRDF nor the security and police personnel had occupied the offices of the FCTP. What had actually occurred was that on 22 October 1996, the executive office of the FCTP had requested the Ministry of Labour and Social Affairs to provide identity cards for its newly elected leaders who had replaced those who had left the federation for their own reasons. Therefore, and as per the request, the Ministry which was the government body responsible for the registration and certification of organizations and their leaders had issued identity cards after examining the relevant documents. Moreover, the issuance of identity cards to the newly elected leaders was not exceptional since the leaders of the eight other federations also had identity cards issued to them by the Ministry in the same manner. The Government reaffirmed its commitment to the free exercise of trade union rights in conformity with the Conventions on freedom of association.

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

B. The Government's reply

355. In a communication dated 29 August 1997, the Government states that many crises arose within CETU shortly after its establishment. Since then, the majority of the industrial federations that constitute CETU have tried their best to resolve differences between themselves through negotiation. Moreover, although the Government had no intention of interfering in the internal affairs of unions, the Ministry of Labour and Social Affairs nevertheless extended its support to solve the conflict within the Confederation peacefully. However, the leadership of CETU failed to resolve these differences. On the contrary, it was more inclined to creating conflict and division amongst the federations and their workers. Finally, eight of the nine federations merged together and reached an agreement on 3 January 1997 to reorganize the Confederation through the establishment of a coordinating committee. After three months of relentless efforts, the coordinating committee called the eighth General Congress of CETU from 22 to 24 April 1997 in Addis Ababa and reorganized CETU.

356. Turning to the alleged occupation of the FCTP offices, the Government states that if such an offence had occurred, a case could have been brought before the courts. There is, however, no such case pending. Moreover, the Government points out that the FCTP is one of the eight federations that now form part of the newly reorganized CETU and which has good working relations with the Ministry of Labour and Social Affairs.

357. The Government further points out that the newly established Confederation was registered and certified by the Ministry as a legal body and started functioning immediately. Its offices opened as of 12 May 1997 and it has started to administer its property and assets. The Government adds that the appeal made by the former President of CETU to the Labour Division of the Federal High Court in connection with the cancellation of the registration of the former CETU was rejected by the Court on 24 April 1997. Hence, the steps taken by the Ministry of Labour and Social Affairs proved legal. Finally, the Government reaffirms its commitment to the free exercise of trade union rights.

C. The Committee's conclusions

358. The Committee notes that the allegations in this case concern the occupation by force of the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP), an affiliate of FIET, by six members of the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF), backed by the security and police forces. These allegations further refer to the physical assault on the Treasurer of the FCTP as well as the forced removal of elected trade union leaders of the same federation. These allegations finally refer to the attempts by eight pro-government federations, in collusion with the Government, to reorganize CETU anew and to administer its property and assets.

359. As regards the alleged entry into, and occupation of, FCTP premises by six EPRDF members, as well as the subsequent physical assault on the FCTP Treasurer, the Government had categorically denied that such an attack had ever taken place during the previous examination of this case [306th Report, para. 453]. The Committee notes that the Government now states that if such an attack had in effect taken place, the persons concerned could have taken the matter to the courts. The Government points out that there is no such case pending before the courts. However, during its previous examination of this case, the Committee had noted that this incident had been reported to the police [306th Report, para. 458]. Moreover, the Committee had requested the Government to ensure that an independent investigation was carried out into the above incidents. Noting with deep regret that this has not been done, the Committee would once again draw the Government's attention to the principle that attacks against trade unionists and trade union premises and property create a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 179]. The Committee therefore urges the Government to ensure that an independent investigation is carried out immediately into the alleged attack against FCTP premises and the FCTP Treasurer on 4 November 1996 so as to identify and punish the guilty parties. It further requests the Government to keep it informed of the outcome of such an investigation.

360. Concerning the allegation that elected trade union leaders of the FCTP were forcibly removed and replaced by persons recruited by the Government, the Committee had requested the Government to institute an independent judicial inquiry into this matter during its previous examination of the case. The Committee regrets to note that the Government has not instituted any such inquiry nor has it provided any information in respect of the above allegation except to indicate that it has good working relations with the new leadership of FCTP within the framework of the newly reorganized CETU. Consequently, the Committee would once again recall the principle that the nomination by the authorities of members of executive committees of trade unions constitutes direct interference in the internal affairs of trade unions and is incompatible with Convention No. 87 [Digest, op. cit., para. 396]. In the light of the serious doubts which appear to surround the regularity of procedures followed leading to the nomination of the new FCTP leaders and in view of the principle that in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [Digest, op. cit., para. 405], the Committee urges the Government to institute an independent judicial inquiry into the above allegation and to keep it informed.

361. Finally, with regard to the allegations concerning attempts by eight pro-government federations to reorganize CETU and to administer its property and assets, the Committee notes the Government's reply that following great internal conflict and division among the federations under the former leadership of CETU, eight of the nine industrial federations finally decided to reorganize CETU by forming a coordinating committee on 3 January 1997. This coordinating committee reorganized CETU at its eighth General Congress held in Addis Ababa from 22 to 24 April 1997. The Government adds that the newly reorganized Confederation was registered and certified by the Ministry as a legal entity and started to administer its property and assets as of 12 May 1997. Finally, the Government points out that the appeal lodged by the former President of CETU to the Labour Division of the Federal High Court over the question of the cancellation by the Ministry of the registration of the former CETU was rejected by the Court on 24 April 1997. As a result, the actions of the eight federations which aimed at re-establishing CETU anew and at administering its property and assets were not illegal, as alleged by the complainants. While noting that the Federal High Court has confirmed the decision of the Ministry of Labour and Social Affairs to cancel the former CETU's registration, the Committee regrets that this decision was taken by the administrative authorities in the first place. In order to have precise information at its disposal on the specific reasons for which the former CETU's registration was cancelled, the Committee would request the Government to send a copy of the Federal High Court's decision in this matter.

The Committee's recommendations

362. 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 ensure that an independent investigation is carried out immediately into: (i) the alleged attack against, and subsequent occupation of, the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP) on 4 November 1996; and (ii) the alleged physical assault on Mr. Mulatu Gurmu, the FCTP Treasurer, on the same day, so as to identify and punish the guilty parties. It further requests the Government to keep it informed of the outcome of such an investigation.

(b) The Committee urges the Government to institute an independent judicial inquiry into the allegation that irregular procedures were followed in nominating the new leaders of the FCTP. It once again asks the Government to keep it informed of the results of such an inquiry.

(c) The Committee requests the Government to send a copy of the Federal High Court's decision confirming the cancellation of the registration of the former Confederation of Ethiopian Trade Unions (CETU) by the Ministry of Labour and Social Affairs.

Cases Nos. 1512, 1539 and 1876
Interim report

Complaint 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, Agricultural, Hotel, Restaurant,
Catering, Tobacco and Allied Workers Associations (IUF)

Allegations: Death, disappearance, threats and acts
of anti-union discrimination

363. The Committee examined the cases and presented interim conclusions on various occasions, the last of which was at its meeting in June 1997 [see 307th Report, paras. 273 to 293, approved by the Governing Body at its 269th Session (June 1997)]. The Committee examined Case No. 1876 and presented interim conclusions on two occasions, the last of which was at its meeting in June 1997 [see 307th Report, paras. 302 to 316, approved by the Governing Body at its 269th Session (June 1997)].

364. Subsequently, within the context of Case No. 1876, the ICFTU sent additional information in a communication dated 18 July 1997.

365. The Government sent new observations in communications dated 10 June 1997 and 10 and 12 September 1997.

366. 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

367. With regard to Cases Nos. 1512 and 1539, at its meeting in June 1997, the Committee formulated the following recommendations on the pending allegations:

Reproduced below is the text of the annex:

Assassinations of trade unionists

Disappearances, abductions, assaults and
arrests of trade unionists

368. With regard to Case No. 1876, at its meeting in June 1997, the Committee formulated the following recommendations on the pending allegations [see 307th Report, para. 316]:

B. Additional information from the ICFTU

369. In its communication dated 18 July 1997, the ICFTU alleges that the "Quetzal" port enterprise dismissed Juan José Morales Moscoso and Everildo Revolorio Torres, Secretary-General and secretary responsible for disputes, respectively, of the Single Workers' Union of the said enterprise, and members of the Executive Committee of the Confederation of United Trade Unions of Guatemala (CUSG).

370. In the case of Mr. Revolorio Torres no valid explanation has been given, except that his dismissal was due to the administrative reorganization of the enterprise. Despite efforts to that effect, it has not been possible to achieve the reinstatement which is his right, because the labour tribunals are not functioning. This case has been dealt with by the Ministry of Labour which showed an interest in having this situation resolved in conformity with the law, but this has been ignored by the supervisor of the port enterprise.

371. The case of Mr. Morales Moscoso is much more serious, because he is being pursued under the criminal code, accused of non-fulfilment of his duties and abandoning his post, accusations brought on by his attending the XIVth Continental Congress of the Inter-American Regional Organization of Workers of the ICFTU (ORIT), where he was present as an official delegate representing the Confederation of United Trade Unions of Guatemala (CUSG). According to the supervisor of the port enterprise, the above-mentioned trade unionist attended this event without permission of any kind, which is completely untrue since he had personally spoken with the said official. Moreover, the CUSG sent a letter to the enterprise regarding Mr. Morales Moscoso's attendance at the Congress.

372. According to the ICFTU similar cases are occurring with the Trade Union of Workers of the National Electrification Institute (STINDE) where union officers and former officers have been dismissed on the pretext that the collective agreement on working conditions is not applicable to them. In both cases, the two enterprises are subject to injunctions, and for this reason they cannot dismiss workers without the prior authorization of a judge; moreover in the case of union officers, the law prohibits their dismissal.

373. On the other hand, according to the ICFTU, the administrative director of the port enterprise is putting strong pressure on Mr. Morales Moscoso, to force him to give up his job in exchange for the enterprise withdrawing its criminal suit, which is an attitude which goes against his rights, and is aimed at weakening and destroying the union organization.

C. The Government's reply

374. In its communications dated 10 June and 10 and 12 September 1997, the Government states that at the end of 1996 and under the gaze of the international community the Firm and Lasting Peace Accord was signed, putting an end to many years of armed internal conflict, and opening the way to building a new Guatemala, on which many hopes were based, and which will need to make itself felt in the strengthening of national institutions and the fostering of new and better forms of community and society. Within this framework, the subject of labour relations, respect for labour standards and the full guarantee of union freedoms, take a principal place. However, the past of the Guatemalan people is still not clear and for this reason the Government reaffirms its decision to continue the investigation and to investigate the acts of violence which may have been committed against workers and union officers, carrying out all the procedures which may be necessary. The Government emphatically declares that repression, state terrorism, the persecution of social and union leaders, and every type of anti-democratic action which did so much damage to the country, no longer hold sway.

375. The Government declares, nevertheless, that they would like union organizations that have presented complaints to contribute in a more active manner to the clarification of these acts. In effect, in many cases the aggrieved parties have not declared the acts to the authorities and when they do so, very often, the judicial authorities point out that the affected persons or union organizations do not present themselves to the investigative powers and collaborate very little, thus impeding the proceedings from being instituted or advancing as would be desired. The Government recalls in this connection the obvious difficulty with which it is faced in trying to investigate cases which occurred during the mandate of former administrations and where the passage of time further complicates the task.

376. The Government informs the Committee that with the aim of using all possible means for the prompt and proper investigation of what happened, it appeared before the Commission on Historical Clarification in order that by means of this Commission an attempt be made to clarify the cases being processed by the Committee. In this connection the Government recalls that the Commission on Historical Clarification is a body originating from the Peace Accords, which has the economic and institutional support of the international community and the actions of which are endorsed by the United Nations. The Government points out that the political will of the Government of Guatemala to clarify the facts contained in the cases now before the Committee is obvious, and requests that the cases be closed.

377. The Peace Accord relative to the Commission on Historical Clarification (of violations of human rights and acts of violence) contains, in particular, the following provisions:

Aims

(i) To clarify with full objectivity, equity and impartiality the human rights violations and acts of violence which caused suffering to the Guatemalan population, linked to the armed confrontation.

(ii) To draw up a report containing the results of the investigations carried out, and to offer objective judgements concerning the events during this period, taking into account all the factors, internal and external.

(iii) To formulate specific recommendations directed at protecting peace and national harmony in Guatemala; the Commission will recommend, in particular, means to preserve the memory of the victims, to promote a culture of mutual respect and observance of human rights, and to strengthen the democratic process.

Period: The period which the Commission will investigate will be from the start of armed confrontation until the signing of the Firm and Lasting Peace Accord.

...

Membership

The Commission will have three members. These will be as follows:

(i) The current mediator of peace negotiations, whose appointment will be requested from the Secretary General of the United Nations.

(ii) A member, a citizen of irreproachable conduct, appointed by the mediator, with the agreement of all the parties.

(iii) An academic chosen by the mediator, with the agreement of all the parties, from a short list suggested by the rectors of the universities.

The Commission will have for the fulfilment of its duties all the support staff which it considers necessary, with the required qualities.

...

International verification

In conformity with the Framework Accord, dated 10 January 1994, the fulfilment of this Accord is subject to international verification by the United Nations.

378. With regard to Case No. 1876, the Government states that the union officers Jorge Galindo, Danilo Aguilar, Félix Hernández and Juan Francisco Alfaro Mijangos, did not present a complaint to the authorities for the acts alleged in the complaint now before the Committee and that all of them are carrying out their trade union activities normally (the Government appends documentation in this regard).

379. In the case of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León, the Assistant Attorney of the Ministry of Public Affairs in Amaritlán has requested the initiation of legal proceedings in the tribunal with the appropriate jurisdiction; moreover a Special Commission of the Ministry of Labour is following up the case. With regard to the Committee's request that investigations take place into the abduction of Mr. Edwin Rolando Yoc Acajabon (the son of a union officer), the father of the victim stated that since 21 February 1996 neither his son, nor himself, nor his family had been the object of persecution, and that he was reserving the right to decide with his family on the possibility of filing a formal complaint with the competent authorities.

380. The Government adds that it is deeply concerned and interested in the clarification of allegations of abductions and threats against union members Félix Hernández, Jorge Galindo, Danilo Aguilar, Débora Guzmán, Vilma Cristina González, Víctor Hugo Durán, Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García, Belarnino González de León, Juan Francisco Alfaro Mijangos and Edwin Rolando Yoc. Nevertheless, having requested, in writing, that union organizations concerned submit a report on these matters, no response was received (the Government attached copies of the communications it had sent out).

381. The Government adds that it particularly draws the attention to the fact that Messrs. Hernández, Galindo and Aguilar were publicly accused of being suspected of committing the same actions which they denounce, by leaders of a rival union federation whose antagonism towards them is public knowledge (the press publication is appended in support). The inter-union conflicts and confrontations which Messrs. Hernández, Galindo and Aguilar are invariably engaged in, contribute to discrediting the belief that the threats and intimidations denounced to the ILO by these people, if indeed these acts really took place, constituted acts of anti-union discrimination or reprisals. Moreover, the Government points out that Messrs. Jorge Galindo and Danilo Aguilar, in connection with the union organizations which they lead, maintain permanent, almost daily, personal communication with the authorities of the Ministry, and at no point have they made a declaration with regard to the supposed death threats denounced to the ILO. Moreover they took part in various demonstrations initiated by the main union confederations of the country during this current year.

382. In the case of Mr. Víctor Hugo Durán, the Government states that it seems extremely unlikely that the assassination attempt which he denounced, if indeed it took place, was due to a deliberate act of repression or anti-union discrimination, in view of the fact that the said officer maintains particularly cordial relations with the authorities of the section for which he works (the Government set out elements to indicate that Mr. Durán carries out his public life normally). It is public knowledge that Mr. Durán has been acting as Secretary- General of the Union since 22 February, a duty which he performs in complete freedom, and he is a shareholder of the recently created Telecommunications Enterprise of Guatemala S.A.

383. The Government emphasizes that no person threatened with death could carry out his or her daily activities with the comfort and freedom exhibited by Alfaro Mijangos, Félix Hernández, Jorge Galindo, Danilo Aguilar and Víctor Hugo Durán, which makes it appear that if the threats and attempted assassination did happen, they were in fact isolated acts or cases which have no relation to the union activity of the above-mentioned union officers. With respect to Débora Guzmán, Vilma Cristina González, Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León, the circumstances are similar to those mentioned in the preceding paragraphs.

384. The Government suggests that all of the acts indicated make it imperative that the International Labour Organization independently verify what has been stated, in order that in due course Case No. 1876 be closed. For this reason the Government requests that a regional technical commission be named which could confirm the real situation in situ and recommend to that Organization the most appropriate means to resolve all of the denunciations contained in the case at issue, and in the others.

385. With regard to allegations relating to the surveillance of members of the IUF by persons unknown in 1993, a government representative personally asked to collaborate to obtain information on this allegation from the headquarters of IUF.

386. In connection with allegations of anti-union discrimination, the Government declares: (1) that the Union of the International Textile Corporation enterprise has not filed a complaint to the competent authorities, and that the labour stability of the workers of the El Salto farm is being examined by the labour tribunals; (2) that the labour inspectors were unable to establish that the dismissals in the Mariposa S.A. bottling enterprise were carried out unjustifiably or as a reprisal (the enterprise is unwilling to pay in cash the benefits due to the workers in question), although in this case in August 1997 the Ministry of Labour asked the Tripartite Commission on International Labour Affairs to mediate on this issue; and (3) that the authorities have approved the statutes of the Union of Municipal Workers of Coban.

387. With regard to the allegations relating to the Las Delicias farm, in which labour requested the reinstatement of dismissed workers, the Government declares that this was not a case of fixed-term workers but seasonal ones, that many of those dismissed now have other jobs and that the case was lost by the workers in the legal institutions. Nevertheless, currently the parties are continuing negotiations and have resolved that if the legal benefits are paid, the labour inspectors, will determine the amount owing and this will be accepted.

D. The Committee's conclusions

388. The Committee notes with satisfaction the peace agreements and, in particular, the agreement on the definitive cease-fire (4 December 1996), the global agreement on human rights and the agreement concerning socio-economic aspects and agriculture, which establishes the principles of freedom of association, social dialogue, negotiation and consultation. The Committee expresses the hope that these new agreements will usher in a new era of labour relations.

Allegations prior to the peace agreements

389. With respect to the acts of violence against trade unionists (1990-94) within the framework of Cases Nos. 1512 and 1539, the Committee takes note of the Government's statements and in particular of its willingness to clarify these acts despite the lack of complaints to the authorities and the paucity of collaboration given by union organizations and the aggrieved parties themselves. The Committee observes, to this effect, that the complainants have not sent the information that it requested from them. The Committee notes with interest that the Government has appeared before the Commission on Historical Clarification (on human rights violations and acts of violence) in order to attempt to clarify the cases before the Committee. The Committee observes that the said Commission is impartial and that the United Nations is charged with the international verification of the Peace Accord which set up the said Commission. The Committee asks the Government to keep it informed periodically of the progress made by the Commission on Historical Clarification in connection with the cases under review.

390. The Committee also asks the Government to keep it informed regarding the investigations into the alleged surveillance of the IUF premises by persons unknown on 23 August 1993. With regard to Case No. 1876, the Committee takes note that the initiation of legal proceedings has been requested concerning the detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarnino González de León, and also that the family of Edwin Rolando Yoc (abducted and later released) was keeping in mind the possibility of making a formal denunciation. The Committee takes note that the union officers Jorge Galindo, Danilo Aguilar, Félix Hernández and Juan Francisco Alfaro Mijangos, did not present denunciations for death threats, and that they are carrying out their union activities normally, as is union officer Victor Durán. The Committee observes that, in connection with the union officers Débora Guzmán and Vilma Cristina González, the Government limits itself to formulating hypotheses. In these circumstances, the Committee reiterates its previous recommendation that it be kept informed of investigations undertaken into the threats or acts of aggression against the above-mentioned union officials, and suggests to the Government to inform all union officials who have not yet presented formal denunciations to the authorities that they may do so if they so desire.

391. The Committee takes note, likewise, that the Government requests a regional technical commission in connection with the cases relating to acts of violence against trade unionists. The Committee hopes that the said regional technical commission will be able to set off shortly to the country, in order to speed up the clarification of the allegations under review.

392. With regard to the allegations of acts of discrimination, the Committee takes note of the Government's statements regarding developments in the legal, administrative or mediation procedures in connection with the International Textile Corporation enterprise, in the El Salto farm, in the Mariposa S.A. bottling enterprise and in the Las Delicias farm. The Committee stresses the importance of remedying all the acts of anti-union discrimination and asks the Government to keep it informed of the progress of these procedures. The Committee also asks the Government to send information about the status of the legal proceedings regarding the dismissal of various officers of the Workers' Union of the San Juan de Dios Hospital.

Recent allegations

393. Finally, the Committee asks the Government to send its observations on the additional information submitted by the ICFTU, dated 18 July 1997.

The Committee's recommendations

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

(a) The Committee notes with satisfaction the peace agreements and, in particular, the agreement on the definitive cease-fire (4 December 1996), the global agreement on human rights and the agreement concerning socio-economic aspects and agriculture, which establishes the principles of freedom of association, social dialogue, negotiation and consultation. The Committee expresses the hope that these new agreements will usher in a new era of labour relations.

Allegations prior to the peace agreements

(b) With regard to Cases Nos. 1512 and 1539, the Committee requests the Government to keep it informed periodically of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-94).

(c) With regard to Case No. 1876, relating in particular to death threats against trade unionists, the Committee requests the Government to keep it informed of the investigations being undertaken, and suggests to the Government to inform union officers who have not presented formal denunciations to the authorities that they may do so if they so desire.

(d) The Committee likewise takes note that the Government requests a regional technical commission in connection with cases relating to acts of violence against trade unionists. The Committee hopes that a regional technical commission will be able to set off shortly to the country, in order to speed up the clarification of the allegations under review.

(e) The Committee asks the Government to continue to keep it informed about the investigations into the alleged surveillance of the IUF premises by persons unknown on 23 August 1993.

(f) With regard to the allegations relating to acts of discrimination (International Textile Corporation enterprise, El Salto farm, Mariposa S.A. bottling enterprise and Las Delicias farm), the Committee stresses the importance of remedying all the acts of anti-union discrimination and asks the Government to keep it informed of the progress of these procedures. The Committee also asks the Government to send information as to the status of the legal proceedings regarding the dismissal of various officers of the Workers' Union of the San Juan de Dios Hospital.

Recent allegations

(g) Finally, the Committee asks the Government to send its observations on the additional information submitted by the ICFTU, dated 18 July 1997.

 Case No. 1892
Definitive report

Complaint against the Government of Guatemala
presented by
the General Confederation of Workers of Guatemala (CGTG)

Allegations: Physical assault and acts of intimidation
against union members

395. The complaints are contained in a communication from the General Confederation of Workers of Guatemala (CGTG) dated 21 June 1996. The Government replied in a communication dated 12 September 1997.

396. 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. The complainant's allegations

397. In its communication dated 21 June 1996, the General Confederation of Workers of Guatemala (CGTG) alleges that the proprietor of the Nueva California estate (Municipality of Pochuta, Department of Chimaltenango) contracted the services of Mr. José Luis Galindo Benavente, known for making death threats against unionized workers, with the intention of destroying the union on the estate.

398. The complainant adds that on 31 May 1996 Mr. Galindo Benavente used his firearm (rifle) against the workers, injuring the union member Miguel Sajquiy Castro in the shoulder (on the left side) and perforating his backpack with a bullet. Likewise, on 9 June 1996, three unknown masked men came out just as a truck was approaching the San Julián estate, property of the University of San Carlos de Guatemala (residence of Mr. Galindo Benavente), they made the truck stop and asked the passengers whether there was anyone from the Nueva California estate among them. The unknown men, who were carrying firearms, having ascertained that there was no one from the Nueva California estate among the passengers, went back into the bushes at that spot.

B. The Government's reply

399. In its communication dated 12 September 1997, the Government states that the judicial authority shelved the proceedings on the acts alleged by the plaintiff organization, as a consequence of the demise of Mr. José Luis Galindo Benavente, whom the complainant was accusing of these acts.

400. The Government adds that they have approached the plaintiff organization to communicate to them all relevant information in order to bring the case up to date but that no reply of any kind had been transmitted.

C. The Committee's conclusions

401. The Committee observes that in this case the complainant alleged physical aggression with the use of firearms against the union member Miguel Sajquiy Castro and acts of intimidation against workers at the Nueva California estate by three masked and armed men. The Committee also observes that the complainant accuses Mr. José Luis Galindo Benavente of the physical aggression and presumes that this same person is also responsible for the acts of intimidation. In this connection, the Committee is obliged to deeply deplore these acts and to point 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 edition, 1996, paras. 46 and 47].

402. The Committee takes note that, according to the statement by the Government, the person whom the complainant accused of the alleged acts (Mr. José Luis Galindo Benavente) has died, for which reason the judicial authority has shelved the case. The Committee also takes note that the complainant has not heeded the Government's request for them to communicate all relevant information in order to bring this case up to date. In these circumstances, the Committee urges the Government to take the necessary steps to ensure that such acts of violence are not repeated.

The Committee's recommendation

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

The Committee urges the Government to take the necessary measures to ensure that such acts of violence are not repeated.

 Case No. 1773
Interim report

Complaint against the Government of Indonesia
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the World Confederation of Labour (WCL) and
-- the Serikat Buruh Sejahtera (SBSI)

Allegations: Denial of union recognition;
government interference in trade union activities;
harassment and detention of trade unionists

404. The Committee examined this case at its meetings in March 1995 [see 297th Report, paras. 484-537, approved by the Governing Body at its 262nd Session (March-April 1995)], March 1996 [see 302nd Report, paras. 447-479, approved by the Governing Body at its 265th Session (March 1996)] and November 1996 [see 305th Report, paras. 327-371, approved by the Governing Body at its 267th Session (November 1996)], during which it drew up interim conclusions.

405. The World Confederation of Labour (WCL) presented new allegations in a communication dated 29 November 1996. The International Confederation of Free Trade Unions (ICFTU) did the same in communications dated 3 and 23 April 1997. The Serikat Buruh Sejahtera (SBSI) submitted new allegations and further information in communications dated 20 February, 6 May and 10 and 22 July 1997.

406. The Government furnished its observations in communications dated 7 March and 6 and 25 June and 11 August 1997.

407. Indonesia 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. Previous examination of the case

408. During the course of its previous examination of this case, the Committee had dealt with very serious allegations of continuous violations of trade union rights in Indonesia relating to the denial of the workers' right to establish organizations of their own choosing, the persistent inference by government authorities, the military and employers in trade union activities, and the ongoing restrictions on collective bargaining and strike action. The case had also addressed serious allegations involving the murder, disappearance, arrest and detention of a number of trade union leaders and workers.

409. The Committee had, during the course of its previous examination of the case, deeply deplored the fact that virtually no remedial action had been taken by the Indonesian authorities. On the contrary, the seriousness of the renewed allegations led it to believe that the general situation of workers in Indonesia had not evolved but was still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.

410. At its November 1996 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

B. The complainants' further allegations

411. In its communication of 29 November 1996, the World Confederation of Labour (WCL) recalls that Mr. Muchtar Pakpahan had been sentenced to three years' imprisonment by the Medan Court on charges of masterminding strikes in Medan in 1994. This sentence was increased to four years following an appeal. Following further appeal to the Supreme Court of Indonesia, he was released without any requirement on 29 September 1995, after spending nine months and ten days in prison. The complainant states that it has now been informed that the Supreme Court has sentenced Mr. Pakpahan to four years' imprisonment on the same charges (of masterminding the 1994 strikes in Medan) for which he had previously been released. The complainant considers this volte-face of the Supreme Court not only to be a travesty of justice and a contravention of Indonesia's Criminal Code, but also a serious contravention of the ILO Constitution. The complainant adds that Mr. Pakpahan meanwhile is still in prison on charges of subversion following the social unrest of July 1996 and therefore it calls upon the ILO to do everything in its power to seek the respect of trade union and human rights in Indonesia.

412. In its initial communication of 3 April 1997, the International Confederation of Free Trade Unions (ICFTU) also refers to the fact that on 25 October 1996 the Supreme Court of Indonesia, acting on a motion by the Head of the North Sumatra District Prosecutor's Office, reversed its earlier decision of September 1995 to quash a four-year prison sentence imposed on Mr. Pakpahan in January 1995. The complainant points out that the Supreme Court's reversal decision drew great concern among legal experts in Indonesia and abroad. More specifically the Supreme Court's decision constituted the very first case, in their recollection, in which a decision review by the Court had been initiated by the Attorney General's Office. It had hitherto been understood by the legal community that the Penal Code (KUHP) granted the right to apply for a Supreme Court decision's review only to the defendant or to his relatives. Many top legal experts stressed that, while an appeal could be filed both by a defendant and the public prosecutor, a demand for a trial review by the Supreme Court could only emanate from the defendant. Moreover the Supreme Court could not accept a demand for a trial review in a case of acquittal.

413. The complainant further points out that the Supreme Court's decision was highly likely to have been influenced by political factors, as well as by personal rivalries within the Court itself. The decision to overturn the Court's previous acquittal was taken by a panel of judges headed by Supreme Court Chief Justice Soerjono, who earlier had been involved in an ongoing dispute with Deputy Chief Justice Adi Sutjipto Andojo. The latter had chaired the Supreme Court panel which had overturned Mr. Pakpahan's four-year sentence in September 1995. Following this and other decisions by Justice Andojo during the course of which he accused Supreme Court colleagues, including Chief Justice Soerjono himself, of colluding and accepting bribes, the latter took a number of measures against Justice Andojo, including relieving him of his responsibility of allocating cases at the Supreme Court. Chief Justice Soerjono then proceeded to appeal to Indonesia's President, Mr. Suharto, to dismiss Justice Andojo from the Supreme Court. It is also noteworthy that, in accordance with Presidential Decree No. 82 of 1971, judges like all other civil servants and state employees are required to be members of the Indonesia Civil Service Corps (KORPRI), which is under the direction of the Minister for Home Affairs. KORPRI is controlled by the ruling GOLKAR party and requires its members to comply with its rules and policy guidelines, which are enforceable by sanctions. Such requirements undermine the neutrality of the judicial power. Under these circumstances, the judiciary is prone to take decisions which favour the Government. The judges believe that if they rule against an official policy, they may be accused of lacking nationalism or acting against the national interest.

414. The complainant then refers to the current trial under way against Mr. Pakpahan who was charged on 2 August 1996 with subversion which carries a sentence ranging from nine years' imprisonment to the death penalty. It recalls that Mr. Pakpahan was accused of having masterminded the opposition demonstration of 27 July 1996 during which thousands of pro-democracy activists protested against the violent police raid on the headquarters of the PDI, a legally recognized opposition party. The complainant contends that the conditions and procedures of the trial, which opened in Jakarta on 12 December 1996 and at which it was represented, did not meet internationally accepted standards on fair trials, which is further evidence that political factors, and not due legal process, are likely to determine the court's decision. The complainant then goes on to describe why this was in its view a show-trial. From the outset, the chief judge adopted a partial and hostile attitude towards the defence lawyers. He demanded that they produce a document from Mr. Pakpahan authorizing them to represent him. When that was duly done, he ordered them to produce their national identity cards. When the trial resumed on 9 January 1997, Mr. Pakpahan's lawyer, Bambang Widjoyanto, was asked to be a prosecution witness. He and the other defence lawyers immediately argued that he could not be a witness against his very client as this would violate the legal code of ethics and the principle of "privileged information between lawyer and client". Then the judge advised Bambang that under the criminal code he could be charged with subversion for refusing to serve as a witness. After considerable debate, the judge told Bambang that it was really up to him to refuse to be a witness and continue to serve as Mr. Pakpahan's lawyer. During this and subsequent court sessions, the presiding Judge Jasuli P. Sudibyo did most of the questioning of the witnesses, often leading with questions aimed at incriminating Mr. Pakpahan, and not allowing the defence to question the witnesses. In particular, defence lawyers strongly protested about the treatment of witness Berarfatia Binti, General Secretary of SBSI, who was insulted and threatened in court by the presiding judge after she departed from statements given during interrogation which she claimed was held under duress. At a hearing on 20 January 1997, Judge Sudibyo ordered Berarfatia to be guarded for five hours in a secluded room in order that she "clearly reconsider" the statements which she had made before the court and threatened her, in case she persisted with her version of events, with a week-long prison term in order that she "clear up her mind and tell the truth".

415. Eventually, the perceived manipulation of the trial's proceedings by the presiding judge and the prosecution led the defence lawyers to jointly issue a letter, on 29 January 1997, addressed to the Head of Supervising Judge for Jakarta's Regional High Court. In their document, the lawyers forcefully argued against the unfair treatment of witnesses and of themselves by the judge and the prosecutor, and maintained that, should the situation continue, not only would the trial itself be severely flawed, but Indonesia's image would be seriously affected. According to the complainant, it is worth noting that the prosecutors have referred very little in court to the riots, since they apparently cannot link Mr. Pakpahan to the violence. The prosecution's case against Mr. Pakpahan now rests in a book he wrote, contrasting the difference in incomes between rich and poor in Indonesia, speeches, SBSI news releases and a music cassette of workers' songs. The complainant concludes by stating that, as of the date of writing, the trial of Mr. Pakpahan has been postponed on health grounds; following several unsuccessful requests, the court finally allowed the defendant to receive treatment at a civilian hospital of his choice, on condition however that he fully support the costs of the six-strong police unit guarding him at the hospital, the latter itself under additional army surveillance.

416. In its communication of 23 April 1997, the complainant asserts that the Government continues to systematically violate trade union rights as demonstrated by the heavy prison sentences imposed on two independent labour activists in the city of Surabaya on 22 April 1997. Dita Indah Sari, 30, and Coen Hussein Pontoh, 27, who were leaders of the independent labour organizations Pusat Perjuangan Buruh Indonesia (PPBI) or Centre for Indonesia's Workers' Struggle and Serikat Tani Nasional (STN) or National Peasants' Association, were sentenced to six and four years' imprisonment, respectively, for "manipulating, undermining and deviating from state policy guidelines", i.e. for subversive activities. According to the complainant, however, they were both arrested in connection with a wave of workers' protests with which they were associated to a significant extent and which took place during the first half of 1996. For example, in West Java Province, 63 strikes were officially reported in April, May and June 1996. In Bakasi, an industrial area west of Jakarta, there were 37 strikes recorded in the first nine months of the year, involving 27,000 workers. The main demand of striking workers was payment of the new minimum wage and other typical labour demands.

417. The complainant goes on to describe how Ms. Dita Sari and Mr. Coen Pontoh were arrested. A huge workers' strike took place in Surabaya, Indonesia's second largest city, on 8 July 1996. Reasons for the industrial action included demands for a raise in the minimum wage, a wage-slip to accompany payment of wages as well as the repeal of five strict security laws adopted in the 1980s. Workers also demanded that the military stop intervening in labour affairs (according to the complainant, pay-offs to military or administration officials, or "hidden costs", can make up to 30 per cent or more of production costs whilst workers' actual wages amount to only 8-9 per cent of production costs). Up to 15,000 workers took to the streets, in two groups, and attempted to merge into one column in order to march before the local assembly and labour ministry offices. Police and army units prevented the two groups from merging by force. Scores of demonstrators were beaten and a dozen were rushed to the hospital. The police arrested and questioned 35 demonstrators. Most were later released but Ms. Dita Sari and Mr. Coen Pontoh remained in detention and were later sentenced to imprisonment, as indicated earlier on. The sentencing of these two union officials to six and four years' imprisonment, respectively, constitutes a severe breach of freedom of association principles since they were both clearly arrested for carrying out legitimate trade union activities.

418. In its communication of 20 February 1997, the Serikat Buruh Sejahtera (SBSI) states that the Government continues to intimidate SBSI members, as was the case with Mr. Supandi, who is an employee of the Andatu Lestari Plywood Company in Lampung in Sumatra. The SBSI indicates that on 27 January 1997 Mr. Supandi was called to the head office by the owner of the company. The regional manpower officer Mr. K. Parangin-angin as well as a few members of the government-owned trade union SPSI were there. These persons allegedly insisted that Mr. Supandi stop carrying out further SBSI activities since SPSI was already active there. As Mr. Supandi refused to yield to this pressure, Mr. Parangin-angin requested the company to dismiss him, stating that the SBSI was similar to the outlawed Indonesian Communist Party. The complainant points out that while Mr. Supandi has not been dismissed as yet, this pressure exercised on Mr. Supandi has forced the SBSI at the plant level in Lampung to adopt a low profile.

419. In its more recent communications, the complainant states that about six persons from the military went to the SBSI Binjai branch office in North Sumatera on 3 May 1997 and questioned the vice-chairman of the branch, Mr. Arias Hia, as to whether SBSI had a valid permit to operate there. These persons proceeded to confiscate all SBSI documents and material in the office and then took Mr. Arias Hia into their custody. Mr. Arias Hia was detained from 3 to 13 May without any grounds. Then on 20 June the local manpower authority of Binjai sent a letter (No. B-492/W2/K-2/1997) to SBSI banning all its activities in that region. Its justification for doing so was that, under the terms of Manpower Regulation No. Per 03/Men/1993, the Government could only recognize one union (the SPSI) in Indonesia. Finally, the complainant alleges that, on 11 July 1997, 18 contract labourers were dismissed from "PT Pelangi Selaras Indonesia (PSI)" in Medan in North Sumatra because they were SBSI members. Initially, these workers had asked the company for an annual bonus and social insurance. PTPSI however rejected their demands and took their case to the local manpower office which approved these workers' dismissal. The reason for this was that under Indonesian legislation the only union that could be recognized and therefore active in Indonesia was the SPSI.

C. The Government's further reply

Legislative impediments preventing workers from
establishing organizations of their own choosing
(305th Report, paragraph 371(a))

420. The Government states that Indonesian laws and regulations including the Constitution of 1945 guarantee the right to organize of workers. Moreover, following widespread criticism from home and abroad on the right of workers to establish their own organizations, the Minister of Manpower issued Regulation No. 1 of 17 January 1994. Based on this regulation, workers may establish an independent and democratic union in each respective company freely and without any requirement of affiliating with another trade union. According to the data available up to now, there are about 1,200 independent unions at the company level. The newly established company union is required only to submit information on its organization status and members of its executive to the Ministry of Manpower. At the same time, soon after the union is established, it is able to perform its function and negotiate with employers on drafting collective agreements. Each factory-based trade union can stay as an independent union without necessarily affiliating with SPSI or may decide to join SPSI. The Government points out that the essence of Conventions Nos. 87 and No. 98 is that all workers in each company should have the right to establish a trade union. The main purpose of that trade union is to negotiate with the employer for better standards of living of those workers and their families. According to the Government, these criteria have been followed by the SPSI and the 1,200 independent factory-based trade unions or Serikat Pekerja Tingkat Persusahaan, SPTP.

Registration of the SBSI (305th Report, paragraph 371(b))

421. the Government points out that the so-called Serikat Buruh Sejahtera Indonesia was formed in April 1992 by elements of a political party and human rights movements. So far, it has not been proven that this organization was established by the workers or their representatives at the company level. Moreover, it has not been proven that its objective is to pursue collective labour agreements. Its inception and recent evidence show that SBSI is more concerned with politics rather than labour issues. The Government states that the courts will decide whether the SBSI has a right to exist or not. Therefore, if the SBSI should exist, it should be categorized as a non-governmental organization rather than a trade union. As an NGO, it may follow Law No. 8 Year 1985 on the principles of social organization. As an NGO, SBSI of course may have particular programmes relating to labour issues such as empowering trade unions through workers' education, helping trade unions in court, etc., but it should not duplicate or take away the roles and functions of trade unions.

Information on Mr. Ariesha (305th Report,
paragraph 371(c)(i))

422. The Government states that Mr. Ariesha was charged with inciting workers to stage demonstrations which degenerated into riots. The State Court of Medan sentenced him to one year in jail while the High Court of Medan gave an additional sentence of two years in jail. The Government indicates that he has completed his punishment.

Information on Mr. Mulyono (305th Report,
paragraph 371(c)(ii))

423. The Government recalls that Mr. Mulyono was dismissed on 6 May 1994, on the grounds that he could not get along with his supervisor and that he frequently created unrest through his influence on other workers. The Government adds that a conciliator from the Ministry of Manpower tried to settle the case in a peaceful manner by inviting the parties to discuss. While the conciliator's proposals were accepted by Mr. Mulyono, they were not acceptable to the company. It was therefore suggested to the company to lodge an appeal to the Regional Committee for Disputes Settlement. On 28 September 1994, this Committee decided to authorize the company to terminate Mr. Mulyono's employment with effect from 19 September 1994. Based on the agreement reached between the parties, Mr. Mulyono accepted the amount of Rs.400,000 in compensation which had to be paid by the company at the latest on 26 September 1994. In the Government's view, the case of Mr. Mulyono's termination of employment by PT Golden Overseas Textile is thus settled.

Situation prevailing at the Southern Cross
Textile Industry (305th Report, paragraph 371(d))

424. The Government restates that, in 1993, the PT Southern Cross Textile Industry (SCTI) in Jakarta employed 1,500 employees and that since 1974 the SPSI has been established in that company. At the beginning of April 1993, negotiations were held between the SPSI and the employer for a yearly wage increase to be paid on 30 May 1993. At that time, the third CLA was entering its second year. While the negotiations were in process, on 19 April 1993, between 2 p.m. and 6 p.m., a group of workers forced the others to strike for a wage increase. In order to avoid any misconduct and destructive actions, the Government reiterates that the employer and the SPSI agreed to hold negotiations outside the company premises. Beginning on the evening of 22 April 1993 and until the next day at 11.30 a.m., the Government reports that a group of workers closed the company gates preventing the other workers from going to work. As a result of this situation, the management of the company dismissed 16 workers.

April 1994 events in Medan; arrests, trials
and detention of workers (305th Report,
paragraphs 365 and 371(e))

425. As regards the April 1994 events in Medan, the Government reiterates that these riots had been planned long in advance. The persons behind these illegal acts had been prosecuted and sentenced pursuant to laws and regulations in force by independent and impartial tribunals. Moreover, the Government once again provides information on 28 workers arrested, detained and sentenced in connection with the events in Medan. (The names of these persons were already listed in Annex 1 of the Committee's 305th Report.) The Government recalls that all of them were sued for inciting workers to riot and sentenced to three to six months' imprisonment. It points out that they have all completed their punishment.

Government investigation into Mrs. Marsinah's death
(305th Report, paragraph 371(f))

426. With regard to Mrs. Marsinah's death, the Government indicates that it still remains a mystery. The Government recalls that Mrs. Marsinah, a young female labour activist, took part in strike action on 3 and 4 May 1993 at PT Catur Putera Surya (CPS) in Sidoarjo, Surabaya, East Java. On 5 May 1993, Mrs. Marsinah did not appear at her workplace. Then, on 8 May 1993, her dead body was found in the jungle of Nganjuk, East Java (about 85 kilometres from Surabaya). Due to the timing of the strike and the death of Mrs. Marsinha, many people, the press, NGOs and even certain diplomatic agencies were very much convinced that the death of Mrs. Marsinah was due to her involvement in the strike. Moreover, there had been great pressure at that time particularly from foreign news agencies which had to some extent influenced the police and court opinions that the murderer was the employer of the company concerned. The Regional Court of Sidoarjo decided to sentence the suspects to imprisonment, namely Mr. Yudi Susanto (company's owner) for seven months; Mr. Yudi Astono (acting manager of PT CPS, Porong branch office) for four years; Mr. Bambang Wuryantoro (Head Division, general supervisor), Mr. Hidayat (cashier and chairman of the SPSI Unit), Mr. As Prayogo (security) and Mr. Suwono (security) for 12 years each; Mr. Karyono Wongso (Head Division, Maintenance Control) and Mr. Suprapto (guard) for 13 years each. Upon appeal, the Surabaya Court later found Mr. Yudi Susanto to be not guilty while the other suspects remained guilty. However, at the end of May 1995, the Supreme Court found all of the suspects to be not guilty. The Government states that since then it has been reinvestigating the case to find out who is the actual murderer of Mrs. Marsinah. It expects that the case will be resolved shortly and that the perpetrator punished accordingly.

Information on Mr. Muchtar Pakpahan
(305th Report, paragraph 371(h))

427. The Government once again insists on the fact that the charge brought against Mr. Pakpahan in connection with the riot of 27 July 1996 was primarily linked to his position as Chairman of the Steering Committee of MARI (Majelis Aksi Rakyat Indonesia) or Indonesian People's Action Council, and not linked merely to his position as Chairman of the SBSI. The Government points out that he is charged with violating section 1(3) of Act No. 11/PNPS/1963 on Combating Subversive Activities. This case therefore is not related to the struggle for labour but is of a political nature. The Government reaffirms its intentions to take legal action for any activity carried out in violation of existing legislation.

Information on intimidation of Mr. Supandi,
SBSI activist (complainant's additional information)

428. With regard to the alleged harassment of Mr. Supandi, an employee of Andatu Lestari Plywood Company in Lampung and an SBSI member, the Government responds that any matter of common interest arising in any company should be resolved through dialogue by involving all parties concerned, namely the representatives of the company, the workers and the Regional Office of the Manpower Department, and based on the principle of consensus. In the Government's view, this was the case on 27 January 1997. Moreover, although it is alleged that the official from the Department of Manpower asked the company to dismiss Mr. Supandi, the Government points out that Mr. Supandi is still working with the company. Finally, although it is claimed that the same government official identified the SBSI as being similar to the outlawed Indonesian Communist Party, the Government indicates that there is not a single piece of legislation stipulating the SBSI as being associated with the banned Communist Party.

Information on the detention of Mr. Aries Hia,
Vice-Chairman of the SBSI Binjai branch office,
North Sumatra (complainant's additional information)

429. Regarding the alleged detention of Mr. Aries Hia, Vice-Chairman of the SBSI Binjai branch office in May 1997, the Government responds that Mr. Aries Hia had been summoned several times by the office of the Department of Manpower in Binjai to provide some clarification on the establishment of the SBSI's branch in Binjai in April 1997. The Government explains that such clarification is required by it whenever the SBSI establishes a branch anywhere in Indonesia since the Government still has not recognized the SBSI's existence due to the fact that it fails to abide by the relevant provisions of the national legislation. Since Mr. Aries Hia had not responded to the summons, an officer of the Department of Manpower in Binjai, accompanied by a law enforcement official, visited Mr. Aries Hia in his office on 3 May 1997. While questioning Mr. Aries Hia, the officer discovered a document in the office which discredited the Government, insulted the President and his family (punishable by law), and finally requested the people to boycott the 1997 national election. National legislation stipulates that whoever possesses documents, the substance of which could threaten public order and well being, can be summoned for questioning. Thus, Mr. Aries Hia was summoned to Kodim 0203 in Binjai where he stayed for four days to further clarify his intention on keeping such a document in the SBSI branch office in Binjai. After having given his explanation on the matter, Mr. Aries Hia was allowed to leave the office of Kodim 0203.

D. The Committee's conclusions

430. The Committee wishes to recall that this case addresses very serious allegations of continuous violations of trade union rights in Indonesia related to the denial of the workers' right to establish organizations of their own choosing, the persistent interference by government authorities, the military and employers in trade union activities, and the ongoing restrictions on collective bargaining and strike action. Furthermore, the Committee wishes to recall its deepest concern over the extreme seriousness of the allegations referring to murder, disappearance, arrest and detention of a number of trade union leaders and workers.

431. The Committee recalls that, in addition to its three previous examinations of this case, it has already examined, in the course of the last few years, two other cases against Indonesia raising allegations of the same serious nature [see 265th Report, Case No. 1431, paras. 104-137; 295th Report, Case No. 1756, paras. 398-429]. The Committee also refers to the direct contact mission which took place in Indonesia in November 1993, to the extensive discussion in the Conference Committee on the Application of Standards in 1994, 1995 and 1997 and to the numerous relevant comments of the Committee of Experts on the Application of Conventions and Recommendations.

432. In these circumstances, the Committee cannot but again deeply deplore that it appears that no remedial action has been taken by the Indonesian authorities. On the contrary, the seriousness of the renewed allegations leads it to believe that the general situation of workers in Indonesia has not evolved but is still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice, including, inter alia, the arrest, imprisonment and harassment of workers and trade union leaders.

433. As regards the issue of legislative impediments preventing workers from establishing organizations of their own choosing, the Committee profoundly regrets that the Government has not provided any positive information on this matter. The Committee notes that the Government merely repeats information provided in its previous report, namely that workers may freely establish an independent and democratic union at the company level based on Ministerial Regulation No. 1 of 17 January 1994. According to available data, there are about 1,200 such unions at the company level which in addition are not required to be affiliated with the Serikat Pekerja Seluruh Indonesia (SPSI).

434. As a result, the Committee would once again recall that the legal requirement according to which an Indonesian trade union is obliged to obtain the SPSI's recommendation in order to be legally recognized constitutes an obstacle to the free establishment of organizations and is, therfore, contrary to freedom of association. The Committee also feels bound to remind the Government again that the Indonesian trade union registration system at the national level comprises requirements that are so stringent as to constitute a major limitation to freedom of association since very few trade unions can see their establishment legally recognized; for instance, section 2(a) of Ministerial Regulation No. Per-03/MEN/1993 provides that a labour union can be registered if it has at least 100 units (work centres) at the plant level, 25 organizations at the district level and five organizations at the provincial level, or, alternatively 10,000 members throughout Indonesia. The Committee recalls that these legal impediments negate the right of workers to establish organizations of their own choosing and are, therefore, in clear violation of one of the most basic principles of freedom of association.

435. Moreover, the Committee would stress, like the Committee of Experts on the Application of Conventions and Recommendations (see, for example, observation, Report III, Part 1A of 1997, page 234 of the English text) and the Conference Committee on the Application of Standards [ILC, 85th Session, 1997, Provisional Record No. 19, pp. 106-114], that the restrictions on free collective bargaining imposed by Regulation No. 03/MEN/1993 on registered trade unions at the plant, district and provincial levels, constitute a flagrant violation of the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, ratified by Indonesia.

436. In these circumstances, the Committee once again urges the Government to eliminate such impediments (such as section 2(a) of Ministerial Regulation No. Per-03/MEN/1993) so as to ensure that the right of workers to organize and to bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.

437. Turning to the specific case of the SBSI which has been awaiting its registration for more than five years, the Committee deeply regrets that the Government resorts to its previous argument that the SBSI is a political organization rather than one which is concerned with labour issues. The Committee would insist once again that it cannot accept the Government's argument with regard to the political nature of the SBSI as a justification for not proceeding with the SBSI's registration. Moreover, the Government contradicts itself by indicating that the courts will decide whether the SBSI has a right to exist or not but that should that right be recognized, the Government will categorize it as a non-governmental organization rather than a trade union. Finally, at various points in its reply, the Government states that it still has not recognized the SBSI due to the fact that the latter fails to abide by the relevant provisions of the national legislation. For its part, the Committee wishes to recall that it had noted during its previous examinations of this case [see 297th Report, para. 530; 302nd Report, para. 472 and 305th Report, para. 363], that although the legal requirements for registration were very stringent and constituted a serious obstacle to freedom of association, the SBSI had met them all except for obtaining the SPSI's recommendation which in any event was not a valid requirement being contrary to freedom of association principles. The Committee therefore would insist yet again that any government position which favours one organization or prevents workers from establishing organizations of their own choosing constitutes an act of anti-union discrimination and is contrary to freedom of association principles. The Committee therfore urges the Government to take appropriate steps to ensure that the SBSI is granted registration as a trade union confederation without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.

438. With regard to Mr. Ariesha's imprisonment following the April 1994 events in Medan, the Committee notes the Government's statement that Mr. Ariesha was charged with inciting workers to stage demonstrations which degenerated into riots. He was sentenced to one year in jail initially but was given an additional sentence of two years' in jail upon appeal to the High Court of Medan. While noting that Mr. Ariesha has completed his punishment, the Committee wishes to recall that allegations of criminal conduct should not be used to harass trade unionists by reason of their membership or activities and that the sentencing of trade unionists to long periods of imprisonment, very often on grounds of "disturbance of public order" or similar general grounds, makes it possible to repress activities of a trade union nature [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 43 and 64].

439. With regard to Mr. Mulyono's inquiry (305th Report, paragraph 371(c)) as well as to the alleged acts of anti-union discrimination against workers of the Southern Cross Textile Industry (SCTI) found to be members of SBSI (305th Report, paragraph 371(d)), the Committee deeply regrets that the Government simply repeats information already provided. The Committee recalls that Mr. Mulyono was dismissed on vague grounds from PT Golden Overseas Textile more than three years ago. The Committee therefore urges the Government to initiate an independent inquiry in order to clearly establish the reasons of Mr. Mulyono's dismissal and, if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to grant him the option of being reinstated in his post without delay. The Committee requests the Government to keep it informed in this respect. Furthermore, concerning the Southern Cross Textile Industry (SCTI), the Committee recalls that the company memo according to which action would be taken against any worker in the company found to be a member of the SBSI or openly or covertly organizing for the SBSI was circulated five years ago (23 November 1992). The Committee once again feels obliged to recall that Convention No. 98, ratified by Indonesia, provides that particular protection must be given to workers against dismissal or other prejudices by reason of union membership. Noting the Government's statement that 16 workers were dismissed from the SCTI in April 1993, the Committee urges the Government to indicate without delay whether these dismissed workers were members of the SBSI and if so, to ensure that they are reinstated in their jobs, if they so wish. The Committee requests the Government to keep it informed in this respect.

440. The Committee notes that the Government once again provides information on 28 workers arrested, detained and sentenced in connection with the April 1994 events in Medan, all of whom have completed their punishment. However, the Committee deplores the fact that the Government still has not provided any information on Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu) who were also allegedly arrested and detained in connection with the events in Medan. The Committee further deplores the fact that the Government has not provided information requested by the Committee on three previous occasions and which concerns the outcome of the trials of Messrs. Icang and Suryandi whose arrests were allegedly related to the Spring 1994 events in Medan. They were accused of having illegally gathered people without the appropriate permit. The Committee therefore once again urges the Government to provide without delay information on (i) Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu); and (ii) the outcome of Messrs. Icang's and Suryandi's trials, who were allegedly detained in connection with the April 1994 events in Medan. The Committee requests the Government to keep it informed in this regard.

441. As regards the investigation into Mrs. Marsinah's homicide which occurred over four years ago, the Committee profoundly regrets that the circumstances of her death have still not been elucidated by a Government investigation into the matter which commenced in June 1995. In this respect, the Committee would draw the Government's attention to the fact 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. Moreover, the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest, op. cit., paras. 55 and 51]. In this regard, the Committee notes that the Government expects that the case will be resolved shortly and the perpetrator punished accordingly. It asks the Government to provide information on developments as a matter of urgency. Moreover, the Committee requests the Government to institute an independent judicial inquiry into the homicide of Mrs. Marsinah with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed of the results of such an inquiry.

442. With regard to the specific situation of Mr. Muchtar Pakpahan, Chairman of the SBSI, the Committee notes that there are two sets of allegations relating to his case, the nature of both of which are extremely serious. First of all, the Committee recalls that the Supreme Court in September 1995 overturned two lower court sentences against Mr. Pakpahan on the charge of inciting mass labour unrest in Medan in April 1994; consequently, Mr. Pakpahan was released without any requirement by the Supreme Court after spending more than nine months in prison. The Committee is gravely concerned to learn that on 25 October 1996 the Supreme Court reversed its earlier decision of September 1995 and sentenced Mr. Pakpahan to four years' imprisonment on the same charge (of masterminding the 1994 strikes in Medan) for which he had previously been released. The Committee notes that the Government does not refute the complainants' detailed allegations that the Supreme Court's decision, which was in violation of the Indonesian Criminal Code, was influenced by political factors, as well as by personal rivalries within the Court. The Committee deplores this turn of events, which in addition to undermining the independence and impartiality of the judiciary, is in flagrant violation of Article 14(7) of the United Nations International Covenant on Civil and Political Rights which stipulates that "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Consequently, the Committee urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan, and to have him released.

443. In addition, the Committee notes that although the more recent trial against Mr. Pakpahan, who was charged with subversion on 2 August 1996 in connection with riots which occurred in July 1996 in Jakarta, has been postponed on account of Mr. Pakpahan's poor health, the charges against him have not been dropped. The Committee must express its deepest concern since such a subversion charge carries a maximum sentence of the death penalty. Moreover, the Committee deplores the fact that the Government has not commented on the complainants' lengthy explanations as to why the proceedings of the trial which opened in Jakarta on 12 December 1996 did not meet internationally accepted standards on fair trials. In this respect, the Committee would remind the Government of the great importance it has always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences [see Digest, op. cit., para. 109].

444. The Committee considers that the above events complete the picture of active anti-union discrimination on the part of the Government vis-à-vis Mr. Pakpahan and therefore cannot concur with the Government that the charge brought against Mr. Pakpahan in connection with the riots of 27 July 1996 was not linked to his position as Chairman of the SBSI. On the contrary, the Committee considers that under the cover of allegations of subversive activities, the charges brought against and the measures taken against Mr. Pakpahan are linked to his trade union activities. The Committee therefore urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the July 1996 events in Jakarta and to ensure that he can exercise freely his legitimate trade union activities as soon as he is released from hospital. The Committee requests the Government to keep it informed in this respect.

445. Furthermore, the Committee deplores that the Government still has not provided information with regard to the alleged anti-union measures taken against SBSI officers following the July 1996 events, including their arrest, detention and interrogation by the police or the military. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the Committee once again wishes to recall that the harassment, arrest or detention of trade union leaders for activities connected with the exercise of trade union rights are contrary to the principles of freedom of association. It once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.

446. In addition, the Committee deeply regrets that the Government has not responded to the more recent allegation that heavy prison sentences were imposed on Ms. Dita Sari and Mr. Coen Pontoh, two union officials of the independent labour organizations Pusat Perjuangan Buruh Indonesia (PPBI) and Serikat Tani Nasional (STN), respectively, for having participated in strike action in the city of Surabaya on 8 July 1996. The Committee understands that reasons for the industrial action included typical labour demands as well as demands for the repeal of strict security laws and for the military to stop intervening in labour affairs. However, the police and army units intervened and violently broke up the strike action; subsequently, Ms. Dita Sari and Mr. Coen Pontoh were arrested, detained and sentenced to four and six years' imprisonment, respectively, on 22 April 1997. The Committee would draw the Government's attention to the principle that in cases of strike movements, the authorities should resort to the use of force only in situations where law and order is seriously threatened. Furthermore, 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 Digest, op. cit., paras. 580 and 602]. Since these principles do not appear to have been respected in the present case, the Committee is bound to conclude that the Government has failed to demonstrate that the measures taken against these two trade union officials were in no way occasioned by their legitimate trade union activities. The Committee therefore urges the Government to provide information on the situation of these two trade union officials, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.

447. As regards the alleged harassment of Mr. Supandi, an employee of the Andatu Lestari Plywood Company in Lampung and an SBSI member, by an official from the Department of Manpower who asked the Company to dismiss Mr. Supandi on account of the latter's refusal to stop carrying out further SBSI activities, the Government replies that Mr. Supandi is still working with the Company. Similarly, regarding the alleged detention of Mr. Aries Hia, Vice-Chairman of the SBSI Binjai branch office in May 1997, the Committee observes that the Government acknowledges that Mr. Aries Hia was detained for four days to provide some clarification on the newly established SBSI branch office in Binjai as well as to explain the presence of a document in this office which, amongst other things, discredited the Government. Noting that the Government does not deny that the above two SBSI officials were intimidated and detained, respectively, the Committee would insist on the fact that the harassment and detention, even if only briefly, of trade union leaders or members on account of their trade union membership or activities (in the present two cases, SBSI membership and corresponding activities) are contrary to the principles of freedom of association. Finally, noting that the Government has not replied to the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia in Medan on 11 July 1997 on account of their SBSI membership, the Committee calls on the Government to provide this information without delay; if it appears that these 18 contract labourers are members of SBSI, the Committee strongly urges the Government to take the necessary steps to ensure that they are duly reinstated in their jobs.

448. With regard to the alleged violations of freedom of association reported by the SBSI in its communication dated 11 June 1996, the Committee had requested the complainant to provide additional information in view of the wide discrepancies between the complainants' and the Government's versions of events that occurred. Noting that this information has still not been provided and in order to pronounce itself on the matter in full knowledge of all the facts, the Committee would once again request the SBSI to provide additional information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for Medan and Binjai Branches.

449. The Committee draws the attention of the Committee of Experts to the legislative aspects of this case in relation with the application of Convention No. 98.

The Committee's recommendations

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

(a) The Committee is deeply concerned that no action has been taken by the Government to remedy the situation of workers in Indonesia which is still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.

(b) The Committee recalls that Indonesian legislation, which imposes a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprises requirements that are so stringent as to constitute a major limitation to freedom of association and collective bargaining. The Committee would therefore once again urge the Government to eliminate such impediments so as to ensure that the right of workers to organize and bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.

(c) As regards the specific case of the SBSI, the Committee once again urges the Government to take appropriate steps to ensure that it is granted registration without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.

(d) The Committee urges the Government to initiate an independent inquiry in order to clearly establish the reasons for Mr. Mulyono's dismissal and, if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to grant him the option of being reinstated in his post without delay. the Committee requests the Government to keep it informed in this respect.

(e) The Committee urges the Government to indicate without delay whether the 16 workers who were dismissed from the Southern Cross Textile Industry in April 1993 were members of the SBSI and if so to ensure that they are reinstated in their jobs, if they so wish. The Committee requests the Government to keep it informed in this respect.

(f) The Committee urges the Government to provide without delay information on: (i) Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu who were allegedly detained in connection with the April 1994 events in Medan; and (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee requests the Government to keep it informed in this regard.

(g) Noting that the Government expects that its investigation into Mrs. Marsinah's homicide will be resolved shortly and that the perpetrator will be punished accordingly, the Committee asks the Government to provide information on developments as a matter of urgency. Moreover, the Committee requests the Government to institute an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over four years ago with a view to punishing those responsible; it requests the Government to keep it informed of the results thereof.

(h) Recalling the importance of the principle of a prompt and fair trial by an independent and impartial judiciary, and believing that under the cover of allegations of subversive activities, the charges brought and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan and the July 1996 events in Jakarta and to have him released. The Committee further calls on the Government to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities as soon as he is released from hospital. The Committee requests the Government to keep it informed in this respect.

(i) The Committee once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.

(j) The Committee urges the Government to provide information on the situation of Ms. Dita Sari and Mr. Coen Pontoh, two independent union officials, who were allegedly arrested and imprisoned further to their participation in industrial action, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.

(k) The Committee calls on the Government to provide information on the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia (PT PSI) in Medan on 11 July 1997 on account of their SBSI membership. It urges the Government to take the necessary steps to ensure that these 18 workers are duly reinstated if they are indeed members of the SBSI.

(l) In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the SBSI to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.

(m) 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 relation with the application of Convention No. 98.

 Case No. 1897
Definitive report

Complaint against the Government of Japan
presented by the
Japan National Hospital Workers' Union (JNHWU)

Allegations: Restriction of legitimate trade union activities;
frequent transfer of trade union leaders; refusal to
bargain collectively with the union

451. In a communication of 13 August 1996, the Japan National Hospital Workers' Union (JNHWU) presented a complaint of infringements of trade union rights against the Government of Japan. It submitted additional information in communications dated 19 September and 11 October 1996.

452. The Government supplied its observations in a communication of 15 May 1997.

453. Japan 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

454. In its complaint, the Japan National Hospital Workers' Union Tokyo District Council (JNHWU) explains that in Japan there are 240 national hospitals and nursing homes nationwide. The JNHWU has branches at all of these medical institutions, and among the overall workforce of 53,000, 36,000 are union members. The membership of its Tokyo District Council is 2,400. The JNHWU alleges that these medical institutions are under attack by the Health and Welfare Ministry which wants to restrict the JNHWU's activities thereby weakening it. The various forms of attack waged by the Ministry originate in the fact that its members took part in strike action in 1991.

455. The JNHWU then goes on to describe the various ways in which it is attacked by the Ministry. First of all, it points out that while Japanese legislation currently prohibits public servants from going on strike, it does provide for collective bargaining rights. However, national medical institutions began to reject collective bargaining from the second half of 1992. Whenever the union made a proposal, hospital officials would answer that the matter was not a subject for collective bargaining because it was an administrative matter. The JNHWU gives various examples to illustrate this point. For example, at the National Sanatorium of Murayama in April 1996, when the union suggested that pregnant workers be exempted from the night shift, the medical facility replied that this matter could not be the subject of negotiation since this system was well entrenched in legislation. Similarly, in 1996 the union requested that workers of the National Hospital of Oukura be paid overtime allowance in full, to which the medical facility responded that this was a budgetary matter and therefore could not be the subject of negotiation. When the union stressed the need to have windows and screen doors cleaned and to have corridors etc., waxed at least twice a year, as well as the need to increase the storage place for X-ray films at the National Hospital of Takada, the facility side responded that since these issues were of an administrative and managerial nature and not pertaining to working conditions, they were not open for negotiation. The JNHWU contends that as a result of this attitude in national medical institutions, collective bargaining has not been held at all in some hospitals for four years.

456. The JNHWU then asserts that day-to-day union activities have been greatly restricted since December 1993 when the Ministry of Health and Welfare issued "an order of business improvement" to reinforce its management of labour. The Ministry ordered that all agreements previously concluded between management and labour and relating to trade union activities be cancelled. This act has had various adverse implications for the union. First of all, the use of hospital facilities for holding union meetings and carrying out other legitimate trade union activities has been greatly restricted. For example, the JNHWU points out that in March 1996 and in accordance with an orientation for new employees held by the hospital, the pediatrics branch of JNHWU made an application to use a conference room for the purpose of describing the union to the new employees. However, management rejected the application without giving any reasons. In the JNHWU's view, this was done to impede any increase in the number of union members. In addition, ever since the "order of business improvement" was issued, permission to use JNHWU's regular conference room is given on condition that only employees working in the facility attend the meeting. This means that JNHWU's trade union leaders who do not work in the facility concerned cannot attend union meetings. In another instance, when the regular conference of the National Cancer Centre branch of JNHWU was held in July 1996, management only allowed the use of the meeting room on condition that the union flag was not displayed, a display which had been previously allowed.

457. Another attack on union activities has been the restriction on the places where JNHWU's bulletin boards can be put up, although the putting up of such boards had previously been the basis of an agreement between the management and the union. Since July 1996, the Ministry of Health and Welfare has given permission to the union to put up bulletin boards only where patients and their families cannot see them, and it has indicated that two or three such bulletin boards are largely sufficient in one facility. The JNHWU adds that although staff canteens are set up just for employees the putting up of bulletin boards in these canteens in the National Sanatorium Hospital of Tokyo and the National Centre of Neurology and Psychiatry were prohibited by management under the pretext that "patients might use the canteen". The JNHWU points out that since the National Sanatorium Hospital is about 200,000 square metres large, two bulletin boards is too few for employees to have the chance of seeing them.

458. Further attacks on legitimate union activities include restrictions on the distribution and circulation of union news. The JNHWU contends that from 1994 the medical facilities introduce a requirement that all union news be distributed under a licensing system. Moreover, the union is prohibited from distributing union news directly in the workplace. Hence, the distribution of union news is only allowed before working hours at staff gates before employees go to their workplaces. The JNHWU stresses that in 24-hour medical institutions, working hours vary for the staff concerned. As a result, only a limited number of employees can receive union news.

459. The JNHWU goes on to explain that legitimate trade union activities even outside the hospital vicinity are under attack. For example, when the Tokyo pediatrics branch of JNHWU held a protest rally at the front gate of the National Children's Hospital, the staff from the facility side, including the general manager of the hospital, had cameras and video cameras with them while they were watching the assembly. In the JNHWU's view, the cameras and video cameras were used, first of all, to intimidate the participants at the protest rally and secondly to check which employees were taking part in the protest rally with the aim of deterring them from undertaking such activities in the future. In March 1994, the National Cancer Centre branch of JNHWU and other regional groups, totalling about 70 people, participated in a petition to the director of the hospital for the improvement of conditions at the workplace. Although the participants simply handed the petition to the hospital staff, the facility side threatened the employees of the National Cancer Centre and took photographs of those who signed the petition. Similarly, in 1995 when the National Cancer Centre branch of JNHWU distributed leaflets to passers-by at the entrance of Higashi Ginza subway station, located about 500 metres from the hospital, the facility side dispatched staff to check who the participants were and what was being distributed, as well as to threaten union members.

460. In addition, the JNHWU contends that the systematic transfer of union executives to other hospitals is carried out in an attempt to weaken the union. Previously, the Ministry of Health and Welfare had given prior notice of about two months to an employee who was to be transferred so as to ensure that the employee had a say in the matter. Now, and especially after the Ministry issued the "order of business improvement" in December 1993, prior notice is no longer given to the employees concerned. The JNHWU goes on to give examples of such transfers. In April 1995, the chairperson of JNHWU's Tokyo District Council, was compelled to be transferred to another workplace. In September 1995, the chairperson of JNHWU's Saigata branch was compulsorily transferred to a different workplace. Although the union requested that the transfer order be reversed, the Ministry's Medical Bureau refused to do so. Similarly, in April 1996, the Secretary General of JNHWU's National Cancer Centre branch was transferred, which adversely affected the operations of the branch.

461. Lastly, the JNHWU points out that the Ministry took punitive measures against employees who went on strike in November 1991. The JNHWU then describes the course of events leading to this strike which, it stresses, was the last resort. It explains that as public servants are prohibited from going on strike in Japan, the National Personnel Authority (NPA) was set up to compensate for this prohibition. The NPA is primarily responsible for taking administrative measures concerning wages and all other working conditions of public servants including hospital employees. As a result, in April 1963 the JNHWU requested the NPA to issue a decision on its demand for certain administrative measures to be taken relating to the night duty of nursing personnel. The JNHWU's demand was that night duty should be limited to six times a month, the number of beds assigned to one shift unit should be reduced to 40 and more than two nurses should be allocated per unit. On 24 May 1965, the NPA issued its decision that night duties for nurses should be limited to eight times a month, and the one-nurse shift should be stopped. However, the Health Ministry did not implement the NPA decision. According to a survey conducted by the Health Ministry in October 1989, 24 years after the issuance of the NPA's decision, the average number of night duty was still nine a month. Under these circumstances, the cases of chronic fatigue, abnormal pregnancy, and death due to overwork were observed among the personnel, nurses in particular. From February to May 1991, in accordance with the NPA decision, the directors of over 200 national hospitals asked the Health Minister to implement concrete measures for substantially increasing posts of nurses so as to limit the night duty of nurses to eight times a month at national hospitals and sanatoriums. The Health Minister did not respond to this request.

462. In September 1991, the JNHWU, in order to have its demand met, decided to organize on 13 November, meetings to be held simultaneously in national hospitals all over the country that would be extended partially into working hours. It tried to negotiate with the Health Ministry to hold, before 13 November, negotiations between it and the Head of the Health and Medical Care Division of the Health Ministry which was in charge of national hospitals and sanatoriums. The Health Ministry did not accept this proposal. The JNHWU had intended to decide whether it would extend the meetings into working hours or end them by 8.30 a.m., the time when day duty regularly starts, on the basis of the negotiations with the Health Ministry. But as the Ministry refused to hold negotiations, the JNHWU instructed its branches to hold the above-mentioned meetings. These meetings were held at 239 national health institutions throughout the country and were attended by about 25,000 union members in total. The meetings began at about 8.00 a.m. and ended in some institutions at 8.30 a.m. and in others, at 8.57 a.m. Prior to the holding of these simultaneous meetings, the JNHWU had sent instructions to its branches to ensure that essential services would be provided during the strike period without interruption. The JNHWU stresses that there was no refusal of emergency patients and no negative impact on outgoing patients during this period.

463. Nevertheless, in March 1992 the Ministry took punitive measures against 3,090 persons. These included strict warning (Genjyu-Syobun) for 2,518 union members on the grounds that they did not begin work at the regular time; admonition (Kunkoku) for 399 union branch officers; and disciplinary punishment (Cyokaikaikoku) for 147 union branch leaders and 26 national trade union leaders. In addition, the Ministry imposed the following economic sanctions. First of all, it imposed a three-month postponement of a regular pay-rise for 173 persons. Thus, the regular pay-rise for these persons is delayed for three months every time until the age of 57 when regular pay-rises stops. The JNHWU adds that hospital staff usually receive a bonus for diligence twice a year in June and December. However, 2,917 employees (those subjected to a warning) had a cut in their June bonuses. The JNHWU stresses that other losses incurred will affect the pension and retirement allowances of these employees. It is therefore evident that the Ministry, for a strike which lasted less than 30 minutes, inflicted economic damage upon the employees that is far more severe than a mere salary cut, and which is not even provided for by law.

464. The JNHWU concludes by stating that the NPA which is made up of three personnel management officials who are appointed by the Cabinet does not at all reflect the opinions of the employees and their unions and is not impartial. In addition, its recommendations or decisions do not have the function of arbitration awards, and are not binding on the parties concerned. Moreover, when they are made they are implemented neither rapidly nor completely. As for the recommendation procedure of the NPA, the personnel and their unions have no room in participating in this procedure. Also, while the personnel can make demands for administrative measures to be taken, they are not allowed to take part in the process in which the NPA, in response to those demands, decides on the measures it considers necessary. As a result of this, Japanese public servants are denied the right to strike without being given any compensatory guarantees, which clearly constitutes a violation of freedom of association principles.

B. The Government's reply

465. In its communication dated 15 May 1997, the Government states that due to the recent improvement of public and private medical institutions, adequate medical service is almost guaranteed in quantitative terms in Japan. Currently, the number of beds at national hospitals and sanatoriums (83,115 beds) accounts for about 5 per cent of the total number of beds in the country's hospitals (1,669,951 beds). Under the circumstances, basic and general medical services in local communities are provided by public and private medical institutions, while national hospitals are supposed to play roles suitable for national medical institutions, offering "advanced or special medical services to wide areas" carrying out "clinical research" and "education and training". Under the present severe financial situation however, it is difficult to provide all the national hospitals with enough people and facilities to carry out the above activities. Therefore, the best way to put together management resources is through such measures as the abolition, integration and transfer to non-national entities and allocate human resources resulting from the reorganization to surviving facilities as needed to strengthen their functions. This is what the Government has judged unavoidable for Japan's improved medical services in the twenty-first century. The Government believes the reorganization policy is based on the people's consensus because it is included in the "Administrative Reform Program" adopted by the Cabinet on 25 December 1996. Moreover, the "Law on Special Measures Accompanying the Reorganization of National Hospitals" stipulating measures for the smooth promotion of reorganization has been enacted. As for the employment and other working conditions of the staff in the wake of the reorganization, the Government is holding negotiations in good faith in accordance with the relevant laws in order to ensure the smooth enforcement of the reorganization and is determined to continue to do so.

466. Turning to the JNHWU's complaint, the Government first of all points out that the right to organize is guaranteed for clerical national public servants including the national hospital staff under the National Public Service Law (section 108-2). When a registered employee organization proposes to negotiate in accordance with the law with the competent authorities on employee remuneration, working hours or other conditions of work or, in connection therewith, on matters concerning lawful activities including social and welfare activities, the authorities concerned shall respond to such proposals (section 108-5, of the National Public Service Law). The Government is also asked not to reject arbitrarily a similar request from an unregistered employee organization in a report of the Advisory Council on the Public Service Personnel System and does not do so. Such negotiations are also conducted in accordance with the law at national hospitals. The JNHWU was established on 1 December 1948, and has a head office, local chapters (234), regional councils (eight) and district councils (50). Negotiations are carried out between the head office and the Ministry of Health and Welfare, regional councils and regional medical affairs bureaux, and local chapters and facilities. Up to March, such negotiations, including those by the head office and local chapters, had been conducted four times this year. The Ministry of Health and Welfare is now instructing regional (local) medical affairs bureaux and facilities regarding the conduct of such negotiations.

467. Turning to the allegation that the authorities are rejecting the use of conference rooms by organizations of workers for their own gatherings and conferences, the Government responds that the land and buildings of national hospitals are administrative assets (official assets (assets the State offers or decides to offer for its business or enterprise, or for residential purposes of its employees)) as stipulated under 1 of item 2, section 3, of the National Assets Law. The land and buildings of national hospitals are managed by their managers under the National Assets Law. Item 3, section 18, of the law stipulates that "use of and earning of profits from administrative assets can be permitted as far as they do not hinder their original use and purposes". The land and buildings of national hospitals too can be used as far as such use does not hinder their original use and purposes. The Ministry of Health and Welfare is dealing with the use of national hospital land and buildings for employee organization activities fairly and sincerely in line with the above law.

468. The Government then addresses the allegation that workers' collective activities are banned during their working hours. The Government stresses that public servants are obligated to give their full attention to their professional duties under section 101 of the National Public Service Law. Public servants actively fulfil their duties as servants for the people as a whole by providing their services and, therefore, it is the most fundamental duty among public servants' service duties to devote themselves fully to their duties during working hours. As a result, public servants are not allowed to carry out workers' collective activities during their working hours.

469. As regards the allegation that members of workers' organizations are being transferred nationwide in a bid to weaken such organizations, the Government indicates that transfers of workers at national hospitals is implemented only when necessary by a person with appointive power. Such transfers are based on merit, and factors such as the employee's qualifications, ability and experience are duly taken into account. No personnel transfer has been carried out with the intent of weakening workers' organizations. It is prohibited under section 108-7, of the National Public Service Law (Prohibition of adverse treatment) and article 2 of the National Personnel Authority Rule 8-12 (appointment and dismissal of workers) to adversely treat a worker on the ground that he is a member of an employee organization, or that he has attempted to organize or join an employee organization, or that he has performed a justifiable act in an employee organization.

470. Turning to the issue of strikes and disciplinary action, the Government states that on 13 November 1991, the JNHWU held a workshop rally at a national hospital from around 8.00 a.m. to 8.57 a.m. with the participation of some 25,000 members of 237 chapters. At least 2,934 workers did not work for up to 27 minutes although they were on duty that day. This hindered the normal operation of business and falls under acts of dispute prohibited under item 2, section 98, of the National Public Service Law. Thus 173 people -- 26 head office executives and 147 chapter chiefs -- suffered the administration of reprimands based on section 82(1) of the National Public Service Law on 19 March 1992, for attempting, conspiring to effect, instigating or inciting an act of dispute in violation of the National Public Service Law. The Government adds that disciplinary punishment stipulated by the National Public Service Law consists of four measures -- dismissal, suspension from duty, reduction in pay and administration of a reprimand. Although it is alleged in the complaint that the punishment involved pay cuts covering 3,500 people, the Government states that the punishment did not involve any deduction in pay. Moreover, other workers were not punished but received an admonition which did not have the nature of punishment.

471. The Government then addresses the allegation that the strike was carried out in protest against a failure to implement the 1965 adjudication by the National Personnel Authority (NPA) and that even an illegal walkout is permissible as the JNHWU recognizes that such a situation is illegal. The Government emphasizes that strikes are banned for national public employees by law in Japan and it is thus natural that those who participate in strikes are given appropriate disciplinary punishment as stipulated by law. The Ministry of Health and Welfare has been complying with the 1965 adjudication by the NPA and the Government believes nothing illegal is involved in the Ministry's action. More specifically, in April 1963, the Government indicates that the JNHWU submitted to the NPA a "Request for Administrative Measures concerning Restrictions on Night Work of Nurses, Practical Nurses and Midwives". The NPA made its adjudication for the request in May 1965. As for the number of night work days, it said that "it is a reasonable tentative goal to make the monthly average night work days for nurses and others working on the night shift at facilities under the jurisdiction of the Ministry of Health and Welfare about eight days" and pointed out that "if it is difficult to enforce the above target number of night work days immediately, systematic efforts should be made to achieve that goal". Regarding posting two or more people on the night shift, it said "for nursing units where a one-man night shift is considered enough, it is necessary to take measures to facilitate treatment and communications in preparation for contingencies and to give special consideration to rest facility". It also noted: "As for other nursing units, it is considered inadvisable to abolish one-man night shifts all at once as it creates other problems, such as a rise in the number of night work days per month, unless nurses and others are increased considerably. Therefore, systematic efforts should be made toward the abolition of one-man night shifts ... and at the same time considering its impact on the number of night work days and other related matters". The Government underlines that "about eight days a month" is a tentative goal to be reached according to the NPA. Based on this adjudication by the NPA, the Ministry of Health and Welfare acknowledged that it was a most important matter to achieve "a night shift of two people or more and the number of night work days of less than eight days a month" at national hospitals and has been making its utmost efforts to that end. At a time when the Government is strictly curbing the growth of its staff as a whole, it boosted the number of nurses by 11,502 from fiscal 1968 to fiscal 1996. As a result, the average night shift days of nurses at national hospitals has improved, to 8.0 days a month per nurse as of October 1996. A night shift of more than one worker has almost been achieved, too. The Government thinks that this attitude fully respects the above adjudication by the NPA.

C. The Committee's conclusions

472. The Committee notes that the allegations in this case concern the refusal by management to bargain collectively with the Japan National Hospital Workers' Union (JNHWU) at some of its branches in national hospitals and nursing homes; various restrictions on legitimate trade union activities; the systematic transfer of union leaders; and acts of reprisal taken against union leaders and members who participated in strike action.

473. The JNHWU contends that although national legislation provides for the collective bargaining rights of public servants, national medical institutions were not willing to negotiate with the union from 1992 onwards. The JNHWU then goes on to give various examples of instances where officials at different hospitals refused to engage in talks with the union on certain issues. The Committee notes that, while the Government does not comment on the specific examples provided by the JNHWU where collective bargaining was rejected, it categorically refutes the latter's assertion that national medical institutions do not engage in collective bargaining and that collective bargaining has not been held in some hospitals for four years. In fact, according to the Government, negotiations between the Ministry of Health and Welfare and the JNHWU's head office and local chapters have been conducted four times already this year. It would appear to the Committee, from the complainant's statements, that certain matters seem to be excluded from collective bargaining. In this respect, the Committee considers, like the Committee of Experts on the Application of Conventions and Recommendations, that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98; discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve these difficulties [see 1994 General Survey on freedom of association and collective bargaining, para. 250].

474. As regards the allegation that day-to-day union activities, including the use of hospital facilities for holding union meetings, have been greatly restricted since December 1993, the Government responds that the land and buildings of national hospitals are administrative assets that can be used for employee organization activities as far as such use does not hinder their original use and purpose, under the terms of the National Assets Law. The Government adds that it is dealing with this issue fairly, in line with the above Law. However, the Committee notes the JNHWU's statement -- which is not refuted by the Government -- that ever since the "order of business improvement" was issued by the Ministry of Health and Welfare, permission to use the JNHWU's regular conference room is given on condition that only employees working in the facility attend the meeting; this means that the JNHWU's trade union leaders who do not work in the facility concerned cannot attend union meetings. In this respect, the Committee would draw the Government's attention to the principle that Convention No. 135 calls on governments to ensure that such facilities in the undertaking as may be appropriate in order to enable workers' representatives to carry out their functions promptly and efficiently are supplied, and in a manner as not to impair the efficient operation of the undertaking concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 950]. The Committee therefore requests the Government to ensure in future that representatives of the JNHWU are supplied such facilities in the workplace as may be appropriate in order to enable them to carry out their functions promptly and efficiently and to ensure that full-time union officials are granted reasonable access to the workplace.

475. The Committee further notes the JNHWU's contention that other legitimate trade union activities such as the display of union flags at meetings, the putting up of its bulletin boards and the distribution and circulation of union news, have come under attack by the Ministry. According to the JNHWU, legitimate union activities outside the vicinity of the workplace are also being threatened. It gives two examples of situations where hospital officials were dispatched to take photos and videos of JNHWU members who participated in protest rallies, signed petitions and distributed union leaflets, with a view to deterring them from undertaking similar activities in the future. The Committee notes that the Government does not refute these allegations but states instead that employees of national hospitals are not allowed to carry out union duties during their working hours since it is their most fundamental duty as public servants to devote themselves fully to their duties. First of all, it is the Committee's understanding that one of the points of contention in the case at hand is that certain trade union activities are restricted, and not that they are restricted during working hours only. Moreover, as regards the issue of public servants, the Committee would recall that the standards contained in Convention No. 87 apply to all workers "without distinction whatsoever"; organizations of public employees should be able to organize their activities without interference from the public authorities [see Digest, op. cit., paras. 212 and 214]. The Committee considers that the display of union flags at meetings in the workplace, the putting up of union bulletin boards, the distribution of union news and leaflets, the signing of petitions and participation in union rallies constitute legitimate trade union activities which organizations of workers, including employees of national medical institutions, should be given reasonable opportunities to carry out in accordance with Article 3 of Convention No. 87. It would therefore request the Government to ensure that the competent authorities refrain in future from having recourse to measures which would restrict the exercise of these rights by JNHWU members and officials employed at national medical institutions.

476. As regards the allegation that, since the issuance of the "order of business improvement", union executives are being systematically transferred to other hospitals in an attempt to weaken the union, the Government responds that no personnel transfer has been carried out with the intent of weakening workers' organizations but rather that such transfers are based on an employee's qualifications, ability and experience. Moreover, personnel transfers, as alleged by the complainant, are strictly prohibited by law. The Committee for its part would recall that if doubts should arise as to the real motives for such transfers or if a complaint of alleged anti-union discrimination is made, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754].

477. Finally, the JNHWU contends that the punitive measures taken by the Ministry of Health and Welfare against employees who went on strike in November 1991 are unjustified because, amongst other things, they include economic sanctions which are not provided for by law and which will affect the employees concerned during the full course of their employment as well as their retired lives. The Government, for its part, indicates that the disciplinary measures taken against the employees concerned were fully justified since the right to strike is prohibited for public servants, and these measures, in any event, did not include any economic sanctions. In this respect, the Committee would recall that it has held that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [Digest, op. cit., para. 526]. The Committee has further considered the hospital sector to be an essential service in the strict sense of the term [see Digest, op. cit., para. 544]. However, the Committee has also considered that the measures taken by the authorities to ensure the performance of essential services should not be out of proportion to the ends pursued or lead to excesses [see Digest, op. cit., para. 600].

478. Moreover, the Committee has also held that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546 and 547].

479. In this case, the Committee notes that the National Personnel Authority (NPA) was set up to compensate for the prohibition on the right to strike of public servants and that it is primarily responsible for taking administrative measures relating to wages and all other working conditions of public servants including hospital employees. Moreover, the Committee notes that further to the JNHWU's demand for certain administrative measures to be taken relating to the night duty of nursing personnel, the NPA issued a decision thereon on 24 May 1965. The Committee notes, however, that the NPA decision was still not implemented in November 1991 despite several requests to this effect from the complainant and other parties to the Ministry of Health and Welfare. According to the complainant, it was the refusal of the Health Ministry to take concrete measures to implement the NPA decision which drove it to undertake strike action in 1991. The Government, for its part, acknowledges that despite its utmost efforts to speed up matters, the Ministry of Health and Welfare was able to implement the NPA decision only in 1996. The Committee observes that it has already examined the issue of the non-implementation of the NPA's recommendations in a previous case concerning Japan [see 222nd Report (Case No. 1165), paras. 153-169],and that this issue has also been raised by the Committee of Experts in several observations, including those of 1983, 1984, 1985 and 1987 [see reports of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 4A of 1983, 1984, 1985 and 1987]. The Committee therefore would reiterate its previous recommendation pertaining to this issue; it expresses the firm hope that future recommendations of the NPA will be fully and promptly implemented, thereby ensuring to the public employees concerned a measure of compensation for the restrictions placed on their trade union rights as regards collective bargaining and the right to strike.

The Committee's recommendations

480. 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 ensure in future that representatives of the Japan National Hospital Workers' Union (JNHWU) are supplied such facilities in the workplace as may be appropriate in order to enable them to carry out their functions promptly and efficiently and to ensure that full-time union officials are granted reasonable access to the workplace.

(b) Recalling that the display of union flags at meetings in the workplace, the putting up of union bulletin boards, the distribution of union news and leaflets, the signing of petitions and participation in union rallies constitute legitimate trade union activities, the Committee requests the Government to ensure that the competent authorities refrain in future from having recourse to measures which would restrict the reasonable exercise of these rights by JNHWU members and officials employed at national medical institutions in the country.

(c) The Committee expresses the firm hope that future recommendations of the NPA will be fully and promptly implemented, thereby ensuring to the public employees concerned a measure of compensation for the restrictions placed on their trade union rights as regards collective bargaining and the right to strike.

 Case No. 1869
Interim report

Complaint against the Government of Latvia
presented by
the International Graphical Federation (IGF)

Allegation: Threat of eviction from union premises

481. The International Graphical Federation (IGF) submitted a complaint against the Government of Latvia in a communication dated 31 January 1996, alleging violations of Convention No. 87. Further information was received from the IGF in communications dated 9 March 1996 and 3 July 1997. In a communication of 9 February 1996, the International Confederation of Free Trade Unions (ICFTU) associated itself with the complaint.

482. In response to the allegations, the Government transmitted observations and information in a communication of 12 August 1997.

483. Latvia 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

484. In its communication of 31 January 1996, the complainant alleges that the Government, through the municipal authorities of Riga, has violated Convention No. 87 in threatening to evict the Latvian affiliate of IGF, the Latvian Book Industry Trade Union (LGAS), from its headquarters and refusing to return its property assets which were confiscated during the occupation period. The complainant contends that in so doing, the Government is attempting to deprive LGAS of its lawful heritage and effectively preventing it from operating.

485. As background to the complaint, the IGF notes that LGAS was founded in 1919, forcibly disbanded during the Soviet occupation, and reconstituted in 1991, pursuant to its 1926 statutes, and registered with the Ministry of Justice in the same year. Prior to the Second World War, it was affiliated to the International Bookbinder's Secretariat, a forerunner of the IGF. In June 1992, LGAS, as the legal successor of the pre-war member organization, became a member of the IGF on the basis of reaffiliation, having been prevented by force majeur from belonging to the IGF in the intervening period. The complainant states that a number of pensioners who are members of LGAS have retained their membership books from the pre-war period and annexed to its complaint some sample copies.

486. Regarding the particular building which is the subject of this complaint (43/45 Lacplesa Street, Riga), the complainant states that it was built in 1931 as the headquarters of LGAS, and financed through membership subscriptions. It was at that time owned by the Health Insurance Fund of LGAS. During the Soviet occupation, the building was expropriated by the State and administered by the Riga municipal authorities and LGAS was forcibly disbanded. Graphical workers were compelled to belong to the state-controlled Cultural Workers' Union (CWU). In 1991, the graphical workers decided to reconstitute their trade union and ceased to be members of CWU.

487. The complainant asserts that LGAS should be able to recover its assets and use them for their originally intended purpose. It notes that on 2 June 1995, the District Court of Riga Centre held that the LGAS Health Insurance Fund was the rightful owner of the property in question. However, the municipal authorities secured a second hearing in the Civil Division of the High Court, which was scheduled for 2-3 September 1997.

488. In its communication of 3 July 1997, the complainant states that the Riga authorities had at that time again taken steps to evict LGAS from its headquarters.

B. The Government's reply

489. The Government in its reply contends that there has been no violation of the Convention in this case, as Convention No. 87 does not refer to the rights of acquisition and holding property, but rather to the rights of workers and employers to establish and join organizations without interference by the public authorities. It states that property rights are regulated by national law, which permits trade unions, employers, public organizations, etc. to own and administer property.

490. The Government acknowledges that during the 50 years of Soviet occupation, the property rights of many were disregarded. It states that upon regaining independence, legislation regarding denationalization and the restoration of property rights was adopted. The law on "Denationalization of Housing Property in the Republic of Latvia", adopted on 30 October 1991, sets out criteria regarding who is entitled to reclaim property that was nationalized or otherwise expropriated and the procedure to be followed. According to this law, trade unions are not the type of organization eligible to reclaim property. In any event, states the Government, as trade unions were disbanded during the occupation, the present organizations cannot be considered a continuation of the former ones, since they have had to start fresh and do not have their previous members.

491. The Government states that the property in question is a property of the State; pursuant to Order No. 151 of 25 March 1996, the management of the property was put in the hands of the state stock company, State Real Estate Agency, and LGAS leases the property from the Agency.

492. Regarding the pending court case, the Government states that LGAS has not yet exhausted the procedures available pursuant to national law since the case for the restoration of the property rights is still before the court and a decision has not yet been rendered.

C. The Committee's conclusions

493. The Committee notes the complainant's allegations in this case that the Government, through the municipal authorities, has threatened to evict the Latvian Book Industry Trade Union (LGAS) from its premises. The complainant further alleges that the union is the rightful owner of these premises and that, despite a District Court judgement to this effect, the Government has delayed the effective restitution of this property to the union by challenging the District Court's judgement.

494. Firstly, as concerns the Government's indication that the union has not yet exhausted the procedures available under national law since the case for restoration of the property rights is still before the courts, the Committee would recall that, although the use of internal legal procedures is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, Annex I, para. 33.]

495. The Committee notes by way of background to this case that, according to the complainant, the LGAS was originally founded in 1919 and built its headquarters, financed through membership subscriptions, in 1931. The building in question was then expropriated by the State during the Soviet regime and the LGAS was forcibly disbanded and graphical workers were compelled to belong to the state-controlled union. In 1991, the graphical workers decided to reconstitute the LGAS pursuant to its 1926 statutes.

496. The Committee notes the Government's admission that property rights were often disregarded during the 50 years of the Soviet regime and therefore, upon regaining independence, legislation regarding denationalization and the restoration of property rights was adopted. Noting however that, according to the Government, this legislation is not applicable to trade unions, the Committee insists on the importance of trade union organizations being treated as any other organization and calls upon the Government to ensure that they are not discriminated against in this regard. Moreover, the Government contends that there has been no violation in this case since Convention No. 87 does not refer to the rights of acquisition and holding property. Such matters are regulated rather by national law.

497. As concerns the issue of ownership of the property in question, the Committee notes the Government's contention that a present organization cannot be considered to be a continuation of a former union which was disbanded during the occupation. The complainant points out, however, that the LGAS was reconstituted according to its former statutes and provides copies of the pre-war membership books of surviving members. As concerns the dissolution of the LGAS during the previous regime and the sequestering of its property by the State, the Committee would recall the general principle that the assets of a dissolved organization should be provisionally sequestered and eventually distributed among its former members or handed over to the organization that succeeds it, meaning the organization or organizations which pursue the aims for which the dissolved union was established, and which pursue them in the same spirit. [See Digest, para. 684.]

498. The Committee notes, however, that in the special circumstances of the case in question, the sequestration lasted over 50 years. While noting that the LGAS would appear to pursue the same aims of the previously disbanded organization, the Committee recognizes that particular difficulties are involved in this case in particular because of the long lapse of time and any eventual successive legal obligations which may have arisen. The Committee does note however that, in keeping with the above-mentioned principle, the District Court has viewed the claims of the LGAS as legitimate. It expresses the hope that, on this basis, an arrangement will be promptly worked out which is acceptable to the parties concerned and would allow the LGAS to recover the totality or the equivalent of the assets it previously held. Noting however that the municipal authorities have lodged an appeal to the High Court, the Committee requests the Government to provide a copy of the Court's judgement as soon as it is handed down.

499. The Committee notes with regret that the Government has not replied to the allegations of threats of eviction made by the complainant, particularly in light of the Government's own indication that the premises are currently being leased by the union. The Committee considers that threats of eviction of this kind interfere with the effective functioning of trade unions and it requests the Government to ensure that the LGAS be enabled to continue with its lease until the property rights question has been resolved.

The Committee's recommendations

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

(a) Noting that the District Court has viewed the claims of the Latvian Book Industry Trade Union (LGAS) as legitimate, the Committee expresses the hope that, on this basis, an arrangement will be promptly worked out which is acceptable to the parties concerned and would allow the LGAS to recover the totality or equivalent of the assets it previously held.

(b) Further noting however that the municipal authorities have lodged an appeal to the High Court to review the District Court's judgement, the Committee requests the Government to keep it informed of the outcome of this appeal. The Committee further requests the Government to provide a copy of the Court's judgement as soon as it is handed down.

(c) Considering that threats of eviction from trade union premises interfere with the effective functioning of trade unions, the Committee requests the Government to ensure that the LGAS be enabled to continue with its lease until the property rights question has been resolved.

Case No. 1920

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

Complaint against the Government of Lebanon
presented by
-- the General Labour Confederation of Lebanon (CGTL)
-- the International Confederation of Arab Trade Unions (ICATU) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Arrest of trade union leaders; government interference
in trade union elections; amendments to labour legislation
in contravention of freedom of association

501. The complaints in this case are contained in communications from the General Labour Confederation of Lebanon (CGTL), dated 11 February and 19 March 1997. The CGTL presented new allegations in communications dated 17 and 24 April 1997. In a communication dated 5 May 1997, the International Confederation of Arab Trade Unions (ICATU) supported the complaint made by the CGTL. In communications dated 4 June and 17 July 1997, the International Confederation of Free Trade Unions (ICFTU) presented allegations in connection with the same matter.

502. The Government sent its observations in communications dated 21 and 29 May 1997.

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

A. The complainants' allegations

504. In its communications of 11 February and 19 March 1997, the General Labour Confederation of Lebanon (CGTL) denounces the Government's promulgation of Decree No. 8275 of 19 April 1996 which, it claims, adversely alters a section of the Decree of 1952 concerning the organization of trade unions, since the new Decree empowers the Ministry of Labour to set the date of trade union elections and to determine electoral procedures.

505. In a communication of 17 April 1997, the CGTL provides further information relating to its complaint. It denounces the interference of the Government in its affairs and claims that on 13 April 1997, the Government occupied the headquarters of the Labour Federation of South Lebanon, organized sham elections under the threat of armed force while several members of the executive who were to elect their officials were in detention, and cancelled several other elections which had been followed and endorsed by the entire membership.

506. In a communication of 4 June 1997, the International Confederation of Free Trade Unions (ICFTU) denounces the conditions under which the CGTL elections took place on 24 April 1997. While these elections were supposed to take place in the presence of representatives from the ICFTU, ICATU, ILO and the press, the ICFTU claims that there was an abnormal presence of approximately 2,500 members of the armed forces and Lebanese police at the places where the meetings and elections of CGTL leaders were to have taken place. The ICFTU claims that the law enforcement officers forcibly entered CGTL premises on five occasions during the morning of 24 April (between 6 and 10.30 a.m.), destroyed computer material and assaulted and arrested a number of CGTL representatives. The ICFTU also claims that independent observers and local media representatives were prevented from entering CGTL headquarters until after the first elections, which took place under extremely difficult circumstances and in which Mr. Elias Abou-Rizk was re-elected President of the CGTL. The ICFTU claims that subsequently, only certain selected members of the press were allowed to enter the building to film the elections of a rival faction which elected Mr. Al-Zoghbi as President. The Government immediately recognized the election of Mr. Al-Zoghbi and expelled Mr. Abou-Rizk and his supporters from CGTL headquarters.

507. In addition, the ICFTU states that the flagrant irregularities which occurred during the elections of 24 April 1997 reflect one of many attempts by the Government to seize control of the trade union movement. The ICFTU claims that, following the announcement on 3 April 1997 that CGTL elections would be held on 24 April, the Government illegally forced the CGTL to accept the membership of five organizations in order to add ten votes to the list of 44 members entitled to elect CGTL representatives. The ICFTU adds that three other elections of CGTL affiliate organizations were interfered with by the Government in order to ensure the election of pro-government representatives. Lastly, the ICFTU states that the most recent attempt by the Government to destroy the trade union movement in Lebanon occurred on 30 May 1997 with the arrest of Mr. Abou-Rizk, who was about to travel to Copenhagen as President of the CGTL. According to the ICFTU, the Public Prosecutor's Department in Beirut questioned Mr. Abou-Rizk for more than three-and-a-half hours. The ICFTU states that, after being questioned, Mr. Abou-Rizk was brought before the Beirut investigating magistrate on the grounds that he had usurped political authority and public functions under sections 306 and 392 of the Lebanese Penal Code.

508. The CGTL and ICATU, in communications dated 24 April and 5 May 1997 respectively, put forward substantially the same allegations as the ICFTU concerning the CGTL elections of 24 April 1997.

509. In a communication dated 17 July 1997, the ICFTU provides additional information in support of its complaint. It states that, on 14 July 1997, the prosecution demanded a term of imprisonment of at least six months for Mr. Abou-Rizk for disseminating false information prejudicial to the honour of the State. The same sentence was demanded for Mr. Yasser Nehmi, Mr. Abou-Rizk's deputy, and both men were heavily fined. According to the ICFTU, the two men were prosecuted essentially because they had submitted a written complaint to the ILO concerning government interference in the recent CGTL elections.

B. The Government's reply

510. In its communication of 21 May 1997, the Lebanese Government refutes the allegations made by the CGTL concerning the amendments by the Ministry of Labour to sections of the Decree concerning the organization of trade unions in order to exert control over the trade union movement. The Government firstly recalls that section 100 of the Lebanese Labour Code stipulates that "the members of the executive shall be elected for a period of four years by secret ballot. Half the members shall be withdrawn after the first two years by drawing lots and shall then be replaced by a process of voting. Members whose term of office has expired shall be eligible for re-election." The Government maintains that many trade unions and federations refused to comply with section 100 and that their executives have continued to refuse to convene plenary assemblies to elect new executives which would replace those that were elected more than 20 years ago and now have very few remaining members. The Government states that, faced with this situation, the Ministry of Labour on several occasions sent letters to trade unions and federations found to be in violation of the law calling on them to set a date for general elections for all those members of their executives whose terms of office had expired. Following the refusal of most of the trade unions to comply, the Government amended section 3 of Decree No. 7993 of 1952 by Decree No. 8275 of 19 April 1996, according to which "the trade union executive shall set a date for these elections and inform the Government administrative officer for trade unions ... If the trade union executive fails to set a date for the elections ... the Ministry of Labour shall take any necessary measures to ensure that these elections take place, after informing in writing the executive through its president or his or her representative and setting a deadline of one month from the date of that notification for the fulfilment of the statutory obligations in this respect". According to the Government, this amendment has given rise to considerable positive results since the great majority of trade unions have elected new executives of their own accord.

511. Finally, the Government states that one of the main reasons for the authorities convening the CGTL elections was the failure by the CGTL leaders at the time to comply with section 2 of Decree No. 2390 of 25 April 1992 concerning representativeness.

512. The Government has replied to new allegations by the complainants in a communication of 28 May 1997. The Government states, firstly, that the complaint lodged by Mr. Abou-Rizk as President of the CGTL is invalid since it is dated 24 April 1997, the day on which the new CGTL leadership under Mr. Al-Zoghbi was elected and on which, consequently, Mr. Abou-Rizk ceased to be President of the CGTL.

513. According to the Government, the CGTL sent a letter on 5 April 1997 to the Ministry of Labour informing it of its decision to convene its members for the purpose of electing its senior officers on 24 April 1997 at 11 o'clock and invited the Ministry to send delegates to those elections. The Government states that the CGTL's invitation, which requested the Ministry to be present during the elections, contravenes section 5 of the Decree on the organization of trade unions, No. 7993/52, according to which "the electoral process shall be supervised by members appointed by the trade union executive and a delegate appointed by the administration for trade unions under the Ministry of Labour ... if the trade union executive fails to appoint such persons, the delegate of the Ministry of Labour shall supervise the elections together with observers representing the candidates".

514. The Government claims that, on 21 April 1997, the Ministry of Labour sent a letter to the CGTL asking it to submit a list of delegates of the workers' federations belonging to the CGTL so that the Ministry could be sure of the legitimacy and quality of the delegates. The Government alleges that the CGTL failed to send this list and, in accordance with legislation, the Ministry was obliged itself to adopt a list of delegates to participate in the elections.

515. With regard to the election day, 24 April 1997, the Government states that, having cleared the election premises of people not involved in the elections and opened it to all the members of the press and television, the elections began at 11 o'clock precisely. The Government also states that the elections were supervised in accordance with section 5 of Decree No. 7993/52 and that the election proceedings were broadcast live on Lebanese television. The Government maintains that the police and armed forces did not intervene during the elections and merely guaranteed security around the CGTL building. As regards the list of names provided by the former CGTL officials, which according to Mr. Abou-Rizk constitutes the new executive of the CGTL, the Government refuses to acknowledge it in formal or substantive terms on the ground that it contravenes all the existing laws and regulations governing elections.

516. With regard to the decisions of the Ministry of Labour regarding its recognition of the five member federations of the CGTL, the Government maintains that these federations are duly authorized and were established pursuant to decisions published in the Official Bulletin. The Government adds that these federations had sought admission to the CGTL for more than two years and submitted supporting documents, and that the CGTL neither took any decision regarding these applications nor even considered them during that period. The Government states that it was as a result of the CGTL's inaction that the Ministry of Labour decided, on 16 April 1997, to affiliate these five federations with the CGTL, in accordance with section 93 of the Labour Code.

517. As regards the allegations concerning the Labour Federation of South Lebanon, the Government states that the police and armed forces, which maintained security at the Federation's headquarters, were forced to intervene to break up clashes involving approximately 150 people and incited by supporters of Mr. Abou-Rizk against the law enforcement officers and Ministry of Labour representatives.

C. The Committee's conclusions

518. The Committee notes that in this case the CGTL denounces the Government's promulgation of Decree No. 8275 of 19 April 1996, which stipulates that if the trade union executive fails to set a date for trade union elections, the Ministry of Labour is required to take any necessary measures to allow such elections to take place. The Committee also takes account of the allegations that the Government illegally forced the CGTL to accept the membership of five organizations. The Committee also notes the allegations concerning the presence of the armed forces and police and the interference by government authorities with trade union elections and its recognition of the alternative union leadership. Finally, the Committee notes the allegations concerning the arrest of the trade union leader Mr. Abou-Rizk and his colleague Mr. Yasser Nehmi.

519. The Committee notes, firstly, that the Government disputes the validity of the complaint lodged with the Committee on 24 April 1997 on the grounds that Mr. Abou-Rizk was no longer President of the CGTL at the time the complaint was lodged since the elections had taken place that same day. The Committee points out that the original complaint was lodged by Mr. Abou-Rizk, as President of the CGTL, on 11 February 1997 and therefore antedated the elections of 24 April 1997. Furthermore, the Committee takes the view that it has a duty to examine this complaint following its standard procedure, given that the result of the elections is in dispute following allegations of Government interference.

520. As regards the allegations concerning Decree No. 8275 of 19 April 1996, the Committee observes that the CGTL denounces the Government's promulgation of this Decree, which stipulates that the trade union executive is required to set a date for elections and notify the Government administrative officer for trade unions. The Decree also stipulates that if the trade union executive does not set a date for elections, the Ministry of Labour is required to take any necessary measures to ensure that the elections take place, after informing the trade union executive in writing, and setting a deadline of one month for the fulfilment of its statutory obligations in this respect. In this context, the Committee recalls that excessively close government regulation of union elections may be regarded as a limitation of the right of trade unions to elect their own representatives freely, although in general terms, legislation governing the frequency of elections and fixing the maximum period for the terms of office of the executive bodies does not affect the principles of freedom of association. Nevertheless, the Committee recalls that regulations governing the procedures and modalities for electing trade union leaders are primarily a matter for the trade unions, who must themselves establish the appropriate terms of office. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 354, 358 and 359.]

521. As regards the allegation by the complainants that the CGTL was forced to accept the membership of five organizations in order to add new votes to members entitled to elect CGTL representatives, the Committee notes that the Government claims to have acted in this way as a result of the failure of the CGTL over a period of two years to take action regarding the applications of these federations to join the CGTL. In this case, the Committee emphasizes that, while a workers' organization must have the right to join a federation or confederation of its own choosing, it is for the federations and confederations themselves to decide whether or not to accept or reject such an application from a trade union, in accordance with their own constitutions and rules. The Committee therefore considers that the Government's action constituted undue interference in CGTL affairs. Furthermore, the Committee considers that actions of this kind may allow the authorities to influence the result of elections or the actions of a trade union by direct interference with the composition of its constituents. [See Digest, op. cit., para. 608.]

522. As regards the day of elections of CGTL leaders on 24 April 1997, the Committee notes that the complainants report the destruction of CGTL property and assaults against trade unionists by the police and armed forces. In this case, the Committee once again emphasizes the importance of the principle that trade union property should enjoy adequate protection. The Committee considers that a climate of violence in which attacks are made against trade union premises and property may constitute serious interference with the exercise of trade union rights, and such situations call for severe measures being taken by the authorities. As regards the presence of the law enforcement officers inside CGTL headquarters, the Committee recalls that the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so. [See Digest, op. cit., paras. 175, 184 and 185.]

523. Still in the context of the election day, 24 April 1997, the Committee notes the very tense and uneasy atmosphere in which the elections appear to have taken place. The Committee emphasizes that any provisions involving interference by the public authorities in various stages of the electoral process, beginning with the obligation to submit the names of candidates in advance to the Ministry of Labour, together with personal particulars, and continuing with the presence at the elections of a representative of the Ministry of Labour or of the civil or military authorities, is incompatible with the right to hold free elections. [See Digest, op. cit., para. 400.] The Committee deplores this undue interference on the part of the authorities with the exercise of the right of workers' organizations to elect their representatives freely, both as concerns the elections of 24 April and those held by the Labour Federation of South Lebanon.

524. As regards the results of the elections of 24 April 1997, which are disputed by the complainants and the Government, the Committee recalls that where there is an internal conflict between two rival administrations within one trade union organization, the supervision of trade union elections should be entrusted to the competent judicial authorities with a view to guaranteeing the impartiality and objectivity of the procedure. [See Digest, op. cit., para. 394.] In this regard, the Committee requests the Government to inform it whether or not judicial recourse has been taken and to keep it informed of the outcome of any such proceedings. With regard to the arrest and subsequent prosecution of Mr. Abou-Rizk on 30 May 1997 for usurpation of political authority and public functions, and again on 17 July 1997, together with Mr. Yasser Nehmi, for disseminating false information prejudicial to the honour of the State, the Committee can only deeply deplore these arrests, given the circumstances in which the elections of the CGTL leaders took place on 24 April 1997. The Committee is all the more concerned given the fact that the arrests and prosecution of these officials appears to have been directly connected with the fact that they had lodged a complaint with the Governing Body of the ILO. The Committee emphasizes that prosecutions, or other forms of sanction, should not in any way be instituted against trade union leaders who bring a case before the Freedom of Association Committee. The Committee also recalls that the detention of trade union leaders for activities in connection with the exercise of their right to organize is contrary to the principles of freedom of association. Furthermore, measures depriving trade unionists and trade union leaders of their freedom on grounds connected with 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.] Given these circumstances, the Committee therefore urges the Government to do everything in its power to ensure that the charges against these trade union officials are withdrawn immediately.

The Committee's recommendations

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

(a) Regarding the allegation that the CGTL was forced to accept the membership of five organizations, the Committee, recalling that it is for federations and confederations themselves to decide whether or not to accept the affiliation of a trade union in accordance with their own constitutions and rules, calls on the Government to refrain from any undue interference in the internal affairs of organizations by insisting that it accept new members.

(b) As regards the elections of CGTL officials held on 24 April 1997, the Committee deeply deplores the attacks against trade union premises and property and against trade unionists. The Committee emphasizes that the Government must in future respect the right of workers' organizations to elect their representatives freely, and urges the Government to refrain from any interference in the electoral processes of trade unions.

(c) As regards the contested results of the elections of CGTL officials on 24 April 1997, the Committee requests the Government to ensure that the supervision of trade union elections is entrusted to the competent judicial authorities, to inform the Committee whether or not this matter is currently the subject of judicial recourse and to keep it informed of the results of any such proceedings.

(d) As regards the arrest and subsequent prosecution of the trade union leaders Mr. Abou-Rizk and Mr. Yasser Nehmi, the Committee expresses its profound concern regarding the detention and prosecution of these officials for reasons connected with the exercise of their trade union rights. The Committee urges the Government to do everything in its power to ensure that the charges brought against them are withdrawn immediately.

 Case No. 1894

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

Complaint against the Government of Mauritania
presented by
-- the Free Confederation of Workers of Mauritania (CLTM) and
-- the Mauritanian Transport Workers' Federation (FTM)

Allegations: Refusal to grant legal recognition to an organization

526. The complaint submitted by the Free Confederation of Workers of Mauritania (CLTM) against the Government of Mauritania is contained in a communication dated 25 June 1996. The complaint from the Mauritanian Transport Workers' Federation (FTM) is contained in a communication dated 3 October 1996. The CLTM submitted new allegations in a communication dated 11 May 1997. As the Government failed to reply, the Committee had to adjourn the examination of the case in its meetings of November 1996 and March and June 1997. [See 305th Report, para. 4; 306th Report, para. 5, and 307th Report, para. 9.] In view of the time which had elapsed since the complaint was submitted, the Committee made an urgent appeal to the Government pointing out 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 this case at its next session, even if the observations or information requested had not been received in due time. To date, the Government has not sent any observation.

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

A. The complainants' allegations

528. In a communication dated 25 June 1996, the Free Confederation of Workers of Mauritania (CLTM) claims that the Government refused to acknowledge the legal existence of this Confederation despite the fact that law and regulations provide for and guarantee the free exercise of trade union rights.

529. The CLTM explains that, following the split which occurred within the General Confederation of Workers of Mauritania (CGTM) at its Congress in February 1995, the CLTM was set up on 19 March 1995 in Nouakchott after the constitutive congress of the following federations and trade unions: National Federation of Infrastructure Workers; Energy and Fuel Workers' Trade Union; National Federation of Employees in Public Works, Waterworks and Municipal Organizations; Trade Union of State Contract Workers and Auxiliaries; and the Trade Union of Army Civilian Workers. The CLTM states that, during the week after the file had been submitted, the public prosecutor had promised to issue a certificate once the inquiry into the "good conduct"of the organization had been completed -- which was due the following week. A few days later, the public prosecutor informed the CLTM that he had been ordered by his superiors not to issue a recognition certificate to the CLTM. The CLTM states that after several months, the public prosecutor sent the whole file to the Director of Public Prosecution, informing him that the file was complete and in accordance with the regulations but that he had received instructions from the Ministry of Justice to hold it up for purely political reasons. To date, the CLTM still has not obtained recognition of its trade union status from the Mauritanian authorities.

530. In a communication dated 11 May 1997, the CLTM alleges that a meeting of its followers, who had peacefully gathered to celebrate 1 May 1997, had been violently suppressed by the police and that this action had resulted in many people being injured. In addition, approximately ten people were arrested -- all of whom have since been released.

531. In a communication dated 3 October 1996, the Mauritian Transport Workers' Federation (FTM), established on 7 February 1996, also alleges that the Government refused to recognize its federation. According to the FTM, it had submitted its file for recognition to the public prosecutor in accordance with section 22 of the Labour Code, after which it had received a temporary acknowledgement of receipt. After waiting one month for a reply from the public prosecutor, the FTM noted that the file was still with the Minister of Justice awaiting an opinion and instructions. Since that time, despite numerous reminders to the ministers concerned and notwithstanding the fact that only the public prosecutor can refuse to grant recognition to an organization if it fails to comply with the laws in force, the request for trade union recognition has remained unheeded.

B. The Committee's conclusions

532. The Committee deeply regrets that, despite the time which has elapsed since the complaint was submitted, the Government has failed to reply to any of the allegations presented by the complainants, although it has been requested on a number of occasions, including by means of an urgent appeal, to submit its comments and observations on this case.

533. In such circumstances, in accordance with the applicable procedural rule [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee is obliged to present a report on the substance of the case without being able to take into consideration the information it had hoped to receive from the Government.

534. The Committee reminds the Government that the purpose of the whole procedure instituted by the International Labour Organization to examine allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to the allegations put forward [see 1st Report of the Committee, para. 31].

535. The Committee notes firstly that this case contains two different complaints which deal with the same issues. The Committee notes that in the complaints from the CLTM and the FTM, the complainants claim that the Mauritanian authorities have refused to legally recognize trade unions set up in accordance with Mauritanian law.

536. In this respect, the Committee recalls that the principle of freedom of association would often remain a dead letter if workers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union itself, the need to obtain discretionary approval of the constitution or rules of the organization, or authorization for taking steps prior to the establishment of the organization. The Committee is of the opinion that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations. The Committee insists on the fact that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations and that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 244, 248 and 251.]

537. Furthermore, the Committee recalls that there must be a right of appeal to the courts against any administrative decision concerning the registration of a trade union. The Committee considers that the absence of recourse to a judicial authority against any refusal by the Ministry to grant an authorization violates the principles of freedom of association [see Digest, op. cit., paras. 246 and 264].

538. Observing that the CLTM and the FTM submitted their applications for recognition to the competent Mauritanian authorities in accordance with Mauritanian law, the Committee deplores the lack of any response from the Government and urges the Government to take all the necessary steps to ensure that both trade unions obtain legal recognition in the very near future so that they might defend and promote the interests of their members. The Committee requests the Government to keep it informed of the measures taken in this respect.

539. Concerning the allegations that a peaceful gathering of CLTM followers to commemorate 1 May 1997 was violently suppressed and that arrests were subsequently made, the Committee insists on the fact that measures depriving trade union officials and members 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. Furthermore, the Committee recalls that the holding of public meetings and the voicing of demands of a social and economic nature on the occasion of May Day are traditional forms of trade union action. The Committee is of the view that trade unions should have the right to organize freely whatever meetings they wish to celebrate May Day, provided that they respect the measures taken by the authorities to ensure public order [see Digest, op. cit., paras. 77 and 135]. The Committee, therefore, requests the Government to respect these principles in future.

The Committee's recommendations

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

(a) Concerning the Government's refusal to grant legal recognition to the Free Confederation of Workers of Mauritania (CLTM) and the Mauritanian Transport Workers' Federation (FTM), the Committee urges the Government to take all the necessary measures to ensure that both these trade unions obtain legal recognition in the very near future so that they might defend and promote the interests of their members. The Committee requests the Government to keep it informed of the measures taken in this respect.

(b) Concerning the allegations that a meeting of CLTM followers to commemorate 1 May 1997 was violently suppressed and arrests made, the Committee requests the Government to respect the principle that trade unionists should not be arrested and detained on grounds related to the exercise of their trade union rights and the principle that trade unions should have the right to organize freely meetings and events to commemorate May Day.

Case No. 1927
Interim report

Complaint against the Government of Mexico
presented by the
Trade Union of Workers of the Roche Syntex Group (STGRS)

Allegations: Acts of anti-union discrimination within the
framework of collective bargaining with a minority trade union

541. The complaint in this case appears in a communication from the Trade Union of Workers of the Roche Syntex Group (STGRS) of May 1997. Additional information was forwarded by the complainant in a communication of 1 July 1997. The Government sent its observations in communications dated 7 June and 9 October 1997.

542. 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, 1948 (No. 98).

A. The complainant's allegations

543. In its communication of May 1997, the Trade Union of Workers of the Roche Syntex Group (STGRS) alleges that on 4 March 1997 the Grupo Roche Syntex de México S.A. de C.V. enterprise registered with the Federal Conciliation and Arbitration Board a collective agreement signed with a trade union different from that of the enterprise, the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS). The complainant points out that this collective agreement establishes rights which are well below existing rights and that the enterprise created an artificial majority representation covering the entire pharmaceutical group by considering as trade union members all staff in positions of trust, establishing new posts and including categories already regulated by the collective agreement in force. The trade union points out that the collective agreement which it had concluded covers all the trade union staff of the Roche Syntex Group in Mexico City, with the exception of staff in positions of trust, staff recruited to provide professional services and staff contracted for construction and repair work. The complainant adds that although it represents the majority of the workers, the enterprise chose another trade union with which to conclude a collective agreement establishing conditions of work and benefits which are significantly inferior to those established by the collective agreement in force.

544. The complainant adds that on 10 March 1997 it was informed by a member of the enterprise management that it had been decided that 19 posts would be suppressed and that four members of the trade union executive committee and 15 trade unionists had been dismissed. The complainant states that on 12 March 1997 it requested the intervention of the Under-Secretary of Labour of the Secretariat of Labour to obtain the reinstatement of the dismissed persons and that these authorities summoned the enterprise and the trade union on a number of occasions for the purposes of conciliation. Furthermore, the complainant states that within the framework of a campaign launched by the enterprise to force workers into joining the "Justo Sierra" Progressive Trade Union of Service Workers of the Republic of Mexico (SPJSTS), a number of meetings were held at which workers were informed that if they did not join this trade union they would be dismissed in the same way as the 19 other workers. The complainant also states that on 8 May 1997 the enterprise summoned all workers and told them to resign from the Trade Union of Workers of the Roche Syntex Group (STGRS) and that on the 13th of the same month the enterprise modified work shifts and made workers attend a meeting, from which the officials of the complainant organization were excluded, at which they were told that the enterprise had decided not to recognize the trade union which had concluded the collective labour agreement and that they were all required to join the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS).

545. Finally, in its communication of 1 July 1997, the complainant alleges that on 27 June 1997, the Roche Syntex enterprise dismissed its General Secretary, Mr. Eladio Perez Rubí, for having denounced before national public opinion, the existence of the above-noted events.

B. The Government's reply

546. In its communication of 9 June 1997, the Government states that in the month of March 1997, the Trade Union of Workers of the Roche Syntex Group (STGRS) requested the intervention of the Secretariat of Labour and Social Insurance, claiming that the Roche Syntex enterprise was violating the collective agreement by the unjustified dismissal of 19 unionized workers who were employed in the storage, stocks, packing, loading and delivery departments. Initially, the negotiations did not produce any positive results because of the distant relationship which had existed for a number of months between the trade union and the enterprise, and which deteriorated during the course of the annual wage review. The Government adds that on 4 March 1997 the Grupo Roche Syntex de México S.A. de C.V. enterprise and the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPISTS) registered with the Federal Board of Conciliation and Arbitration a collective agreement which covered the administrative workers and sales staff of this enterprise. Subsequently, this trade union requested that it should replace the Trade Union of Workers of Roche Syntex as the titular collective bargaining organization, basing its request on the grounds of its majority representation of occupational interests. On 27 May 1997 the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS) and the Grupo Roche Syntex de México S.A. de C.V. enterprise appeared before the Federal Board of Conciliation and Arbitration to terminate the collective agreement which they had concluded, and to recognize that the majority trade union representation corresponded to another trade union organization. On 3 June 1997, the Trade Union of Workers of the Roche Syntex Group (STGRS) held an extraordinary general meeting democratically and in exercise of the freedom of association established by legislation to decide on the continuation in office of the executive committee or the election of a new committee to represent members. All the workers participated in this electoral process and agreed that such an election should be held. On the same date a new executive committee was duly registered with the Secretariat, at the request of the trade union organization, since conciliation talks were under way for the purposes of a wage review and the registration of its legal personality.

547. On 6 June the Trade Union Workers of the Roche Syntex Group (STGRS) signed a wage review agreement with the Grupo Roche Syntex S.A. de C.V. enterprise which allowed the matter to be definitively closed. The Trade Union of Workers of the Roche Syntex Group (STGRS) would continue to be the titular organization and administrator of the collective agreement which regulates worker-employer relations in the Grupo Roche Syntex S.A. de C.V. enterprise.

548. The Government states that there has been no infringement of the principles established by Convention No. 87 respecting freedom of association and collective bargaining.

549. In respect of the allegations concerning the dismissal of Mr. Eladio Perez Rubí from the Roche Syntex enterprise for having signed the complaint in question, the Government indicated, in its communication of 9 October 1997, that it was not aware that this worker had been dismissed, but in the event that this is true, Mr. Rubí did not occupy a post in the trade union at Roche Syntex enterprise at the time of the alleged dismissal. In any event, this worker can lodge a complaint concerning the actions which he considers to have violated the Labour Code before the labour courts if he so wishes.

C. The Committee's conclusions

550. The Committee notes that in this case the complainant (Trade Union of Workers of the Roche Syntex Group (STGRS)) alleges that the Grupo Roche Syntex de México S.A. de C.V. enterprise negotiated a collective agreement covering all the workers with a minority trade union ("Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS)), as well as 19 cases of anti-union dismissal of trade union officials and members and threats of dismissal against workers of the enterprise to force them to leave the complainant organization.

551. As regards the allegation concerning the conclusion of a collective agreement covering all the workers with a minority trade union (the SPJSTS) to the detriment of the complainant, the Committee notes that the Government states that on 27 May the minority trade union (SPJSTS) and the Grupo Roche Syntex de México enterprise terminated the collective agreement which they had concluded, recognizing that the majority trade union representation corresponded to another trade union organization; and that subsequently the majority trade union (Trade Union of Workers of the Grupo Roche Syntex, the complainant in this case) signed a wage review agreement with the enterprise on 6 June 1997 (after the presentation of the complaint to the Committee). In these circumstances, the Committee requests the Government to provide a copy of this agreement. The Committee also requests the Government to provide specific information with respect to the relations between the two existing unions in the enterprise and any disputes that may exist.

552. As regards the allegation concerning the anti-union dismissal of 19 trade union members (including four members of the complainant's executive committee), the Committee notes that the Government states that the trade union organization requested the intervention of the Secretariat of Labour and Social Insurance and that "the negotiations did not produce any positive result because of the distant relationship which had existed for a number of months between the trade union and the enterprise, and which deteriorated during the course of the annual wage review". In this respect, the Committee requests the Government to provide detailed information and observations concerning the facts that led to the dismissals and the allegations of their anti-union nature.

553. As regards the allegation concerning the threats of dismissal by the management of the Grupo Roche Syntex de México S.A. de C.V. enterprise to make the workers leave the complainant and join the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS), the Committee regrets that the Government has not furnished observations on this matter. In these circumstances, the Committee requests the Government to forward its observations on this matter as soon as possible.

554. Finally, regarding the dismissal of Mr. Eladio Perez Rubí, General Secretary of the complainant organization which occurred, according to the allegations, as a result of the submission of the present complaint, the Committee notes the Government's indication that it was not aware that this worker had been dismissed and that he was not the General Secretary of the complainant organization at the time that he was allegedly dismissed. In these circumstances, the Committee requests the Government to carry out an investigation into the facts which led to the dismissal of Mr. Eladio Perez Rubí from the Roche Syntex enterprise and to keep it informed in this respect. The Committee also requests the Government to indicate whether the worker in question has filed an appeal before the court.

The Committee's recommendations

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

(a) The Committee requests the Government to forward to it a copy of the wage review agreement of 6 June 1997 concluded between STGRS and the Grupo Roche Syntex de México S.A. de C.V. The Committee also requests the Government to provide specific information with respect to the relations between the two existing unions in the enterprise and any disputes that may exist.

(b) The Committee requests the Government to provide detailed information concerning the facts that led to the dismissal of 19 trade union officials and members of the Trade Union of Workers of the Roche Syntex Group (STGRS) and regarding the anti-union nature of such dismissals.

(c)Concerning the alleged threats of dismissal by the management of the Grupo Roche Syntex de México S.A. de C.V. enterprise to make the workers leave the STGRS and join the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS), the Committee requests the Government to forward its observations on this matter as soon as possible.

(d)The Committee requests the Government to carry out an investigation into the allegation of dismissal of Mr. Eladio Perez Rubí from Roche Syntex enterprise and the facts which led to the dismissal and to keep it informed in this respect and to indicate whether the worker in question has filed an appeal before the court.

Case No. 1921
Report in which the Committee
requests to be kept informed of developments

Complaints against the Government of Niger
presented by

-- the Confederation of Workers' Trade Unions of Niger (USTN) and
-- the Organization of African Trade Union Unity (OATUU)

Allegations: Arrests for strike action,
requisitioning orders in the case of strikes,
dissolution of a trade union, restrictions on the right to
collective bargaining in respect of salaries

556. In its communication dated 29 March 1997, the Confederation of Workers' Trade Unions of Niger (USTN) presented a complaint for the violation of trade union rights against the Government of Niger. The Organization of African Trade Union Unity (OATUU) presented allegations relating to this case in a communication dated 16 April 1997.

557. The Government sent its observations in communications dated 2 June, supplemented by communications dated 9 June and 1 September 1997.

558. Niger 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 Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

559. In its communication dated 29 March 1997, the USTN states that on 27 February 1997, the second and last day of the general strike that it had called, the Government adopted the following: an ordinance to amend the civil service regulations and instruments establishing a new salary scale for public officials. The new salary scale introduces substantial reductions to the salaries of officials who come under the state budget. Thus the Government unilaterally and on its own authority decided to reduce salaries, in violation of the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

560. The USTN called several strikes during the months of February and March 1997 to protest against the reduction in salaries and other measures, such as the privatization of state enterprises. On the occasion of these various instances of union action, for which due notice was given, the USTN made a number of claims which included the reimbursement of outstanding salaries, the timely payment of salaries, the repeal of the new salary scale and the revision of legislation governing strike action.

561. Following a general strike held on 18 and 19 March, several strikers were arrested and imprisoned. On 21 March, in a new strike notice, the USTN denounced the systematic arrests that had been made, and demanded that workers arrested for strike action be released; it also reiterated its previous claims.

562. The USTN alleges furthermore that on 20 March 1997 the Council of Ministers demanded the immediate return to work of customs officials. As a result of the disruption to work caused by the exercise of the right to strike in this sector, the Government decided to dissolve the National Trade Union of Customs Officials of Niger (SNAD).

563. The USTN points out that the Act regulating strike action adopted by the Government considerably restricts the exercise of trade union rights, and more particularly the right to strike. It denounces recourse had to abusive requisitioning, despite provisions establishing a minimum service in vital and strategic state sectors.

564. In its communication dated 16 April, the OATUU, reports the arrest and imprisonment of 22 trade union officials and members for strike action. These include the following trade union leaders: Maman Mansour, Assistant General Secretary of the USTN, Soumaila Mamoudou, member of the National Executive Board of the USTN, Issoufou Chaibou, Abdou Bagué, Maïga Akoua Tretou, all three members of the Executive Board of the Trade Union of Power Workers (SYNATREN).

B. The Government's reply

565. In its communications dated 9 June and 1 September 1997, the Government explains that the factors leading to the revision of the salary scale were of a purely economic nature. In order to redress the economic situation, which has been deteriorating for ten years, structural adjustment programmes were concluded with the international financial and banking institutions, focusing primarily on budgetary savings through the reduction of wage costs, the restructuring of state enterprises and other measures. The Government has made every effort to involve the social partners in deliberations on the major guidelines relating to policy and to economic and social development. To this end it has set up bodies for dialogue and consultation, such as the interministerial committee responsible for negotiating with the social partners, which is comprised of government members and representatives of the occupational organizations. The 1997 Finance Act made provision for a 17 per cent reduction in the wage bill. The Government had the alternative of either reducing the workforce or of lowering the wage bill by reviewing the salary scale. Following unsuccessful meetings with the trade unions, it decided not to reduce the workforce, but to reduce salaries to a level compatible with state resources.

566. As regards strike action, the Government refers in particular to action organized in the power sector by the National Electricity Company (NIGELEC). The prospect of restructuring NIGELEC was behind the work stoppages that took place in March 1997. The trade union SYNATREN called a collective work stoppage without notice or the provision of a minimum service. It gave instructions to certain agents to carry out acts of sabotage on electrical installations and networks. As a result, the whole of the country was without electricity for 48 hours. Section 17 of Ordinance No. 88-064 dated 22 December 1988, establishing the electricity code, provides that if the damage to work or production appliances, and to the transport or distribution of electricity is intentional, the applicable penalties are those stipulated in section 389 of the Penal Code, that is a term of imprisonment ranging from two months to ten years. The management of NIGELEC filed a complaint and initiated public action, and it is in this connection that certain trade union leaders were detained. The Government considers therefore that no workers were harassed as a result of their trade union activities or their participation in strike action in that sector.

567. As regards the customs sector, the National Trade Union of Customs Officials (SNAD) called a work stoppage, without the provision of a minimum service, on 20 and 21 March 1997. The reasons given concerned the fact that the Government had not resolved an isolated dispute between customs officials and the military in one region of the country. The right to strike is guaranteed under the Constitution, the Labour Code and the civil service regulations. For public officials, the exercise of the right to strike is regulated by Ordinance No. 96-009 dated 21 March 1996, which sets the conditions for the exercise of the right by state and local officials, by Ordinance No. 96-010 dated 21 March 1996, which establishes a list of strategic and vital state services, and by Decree No. 96/.../PCSN/MFPT/E dated 21 March 1996, which stipulates the mode of enforcement of the above ordinances. These instruments were adopted following a long series of discussions in the framework of the joint consultative committee, comprised of USTN and government representatives. They make provision for a period of notice, negotiation prior to the actual calling of any strike, a minimum service and freedom to work for non-strikers. Furthermore, in the customs sector, under Decree No. 75-193-PCMS/MFPT/E dated 11 September 1975, which establishes special status for customs officials, only work to rule is recognized as a legitimate way for officials to defend their collective professional rights.

568. According to the Government, in practice trade unions have taken to calling strikes first and negotiating later. Moreover, some trade unions systematically resort to wildcat strikes, i.e. giving no notice and with providing no minimum service. Requisitioning orders enable services to continue vital or strategic activities when faced with a refusal to provide a minimum service. Section 9 of Ordinance No. 96-009 dated 21 March 1996 stipulates that "in exceptional cases associated with the need to preserve general welfare, any state or local official may be requisitioned". The requisitioning of staff is carried out to counter the refusal of some trade union organizations to provide a minimum service.

569. On 9 June 1997, the Government sent a number of documents, including the decision dated 14 April 1997 handed down in the case of the Public Ministry against Adamou Boukari et al. This document gives a ruling on the persons arrested under a committal order on 28 March 1997. It finds Mr. Abdou Bagué and Mr. Rabiou Mahamadou Armayaou guilty of the offence of the destruction and sabotage of public buildings and of complicity and sentences them to two years' imprisonment and a fine of 100,000 francs. It finds Mr. Boukar Abba Gana and Mr. Maman Boukari guilty of the offence of refusal to provide a legally required service and sentences them to two months' imprisonment and a fine of 10,000 francs. It releases the other persons, due to a lack of established facts, namely: Messrs. Adamou Boukari, Issoufou Chérif Chaibou, Adamou Idé, Ousmane Mahaman, Ibrahim Tahirou, Abdoul Modagara, Boubacar Soumana, Elh. Mahaman Bâ, Maman Souley, Boubacar Moussa, Abdou Abdoulaye, Mani Ousmane Abdou, Seydou Hamidou, Hassane Garba, Soumaila Mamadou and Elh. Ramane Mansour.

C. The Committee's conclusions

570. The Committee observes that in this case the USTN is denouncing the Government's adoption of a new salary scale for public officials which substantially reduces their salaries. The Committee notes that the USTN and the OATUU raise the arrest and imprisonment of trade union officials and members for strike action. The Committee also notes the USTN's denunciation of, firstly, the dissolution of the National Trade Union of Customs Officials of Niger (SNAD) following the exercise of the right to strike in this sector and, secondly, the Government's recourse to abusive requisitioning during the strike in vital and strategic state sectors.

571. With respect to the allegations relating to the unilateral adoption by the Government of a new salary scale for public officials, the Committee notes the Government's statements that the priority goal for the public authorities was to redress the economic situation and that structural adjustment programmes were concluded with the international financial and banking institutions with this objective in mind. The Committee also notes that, according to the Government, it was after a number of unsuccessful meetings with the social partners that it decided to reduce salaries to a level compatible with state resources. In this respect, the Committee, while taking full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation, considers however that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. The Committee considers that it is essential that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts. Where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other [see Digest of decisions and principles of the Freedom of Association Committee,4th edition, 1996, para. 899].

572. As regards the allegations concerning the dissolution of the National Trade Union of Customs Officials of Niger (SNAD) following the exercise of the right to strike in this sector, the Committee notes that under Decree No. 75-193-PCMS/MFPT/E dated 11 September 1975, which establishes special status for customs officials, only work to rule is recognized as a legitimate means for officials to defend their collective professional rights. In this connection the Committee recalls that where the right to strike is restricted or prohibited in certain essential services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such services. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike, these restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546 and 547]. In this case, the Government explains its position by the fact that the customs workers' union called a 48-hour work stoppage for its members without the provision of a minimum service. The Committee recalls that the establishment of minimum services in the case of strike action should only be possible in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, or in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population and, lastly, in public services of fundamental importance [see Digest, op. cit., para. 556]. Although it appears that the customs sector could be subject to certain restrictions to the right to strike, such as the giving of notice or the provision of a minimum service, the Committee considers that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases and that such dissolution should only happen following a judicial decision so that the rights of defence are fully guaranteed [see Digest, op. cit., paras. 666 and 673]. The Committee strongly deplores the dissolution of the SNAD and is of the firm conviction that the solution to the economic and social problems confronting a country does not lie in isolating trade union organizations and suspending their activities. The Committee urges the Government to nullify the dissolution and to restore the rights of the SNAD.

573. With regard to the allegations of the arrest and imprisonment of USTN and SYNATREN trade union officials and members for strike action, the Committee notes first that, according to the Government, SYNATREN had called a 48-hour collective work stoppage without giving notice or providing a minimum service and that it had instructed certain agents to cause damage to and carry out acts of sabotage on electrical installations and networks. The Committee has already stated that the right to strike may be restricted in essential services such as electricity services, where strike action could prove extremely prejudicial for the national population, as long as these restrictions are accompanied by certain compensatory guarantees [see Digest, op. cit., para. 533]. In this connection, the requirement that minimum services be established in the case of strike action in the electricity services would appear to be justified. However, the Committee recalls that it is important for provisions regarding the minimum service to be maintained in the event of a strike in an essential service to be established clearly, to be applied strictly and to be made known to those concerned in due time [see Digest, op. cit., para. 559].

574. Secondly, on the matter of the alleged acts of damage and sabotage to electrical installations and networks, the Committee recalls that persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law. However, the Committee stresses the fact that the arrest and detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitute a serious violation of the principles of freedom of association [see Digest, op. cit., paras. 71 and 83]. In this connection, the Committee notes the release of a number of trade unionists following the decision handed down on 14 April relating to the arrests which followed the strike action in March 1997. It expresses the firm hope that all the trade unionists detained as a result of their trade union activities or their participation in the recent strikes will be released. The Committee also requests the Government to keep it informed about the trade unionists in question and about the measures taken to secure their release.

575. As regards the allegations of recourse to the abusive requisitioning of staff during the periods of strike, the Committee notes that for public officials the exercise of the right to strike is regulated by Ordinance No. 96-009, dated 21 March 1996, article 9 of which provides that in vital and/or strategic public services, a minimum service must be established by common accord between the authorities and the trade union organizations. Article 9 also provides that in exceptional cases required in the public interest, any state or local official can be requisitioned. The Committee considers that the scope of this provision should extend only to those cases where a work stoppage could result in a state of acute national emergency as well as to essential services in the strict sense of the term. The Committee recalls that the use of requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association [see Digest, op. cit., para. 573]. The Committee requests the Government to take the necessary measures to amend its legislation accordingly. It also draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of this case.

The Committee's recommendations

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

(a) As regards the Government's adoption of a new salary scale for public officials, the Committee requests the Government to give preference as far as possible to collective bargaining in determining the conditions of employment of public servants.

(b) As regards the dissolution of the National Trade Union of Customs Officials of Niger (SNAD), the Committee strongly deplores this dissolution and reminds the Government that the solution to the economic and social problems confronting Niger does not lie in isolating the trade union organizations and suspending their activities. The Committee urges the Government to nullify the dissolution and to restore the rights of the SNAD.

(c) As regards the arrest and imprisonment of USTN and SYNATREN trade union officials and members for strike action, the Committee, while noting the release of some of the trade unionists, emphatically requests the Government to ensure that all trade unionists detained as a result of their trade union activities or their participation in the recent strikes are released. The Committee also requests the Government to keep it informed about the trade unionists in question and about the measures taken to secure their release.

(d) As regards the recourse to abusive requisitioning of staff during the periods of strike, the Committee requests the Government to take the necessary measures to amend its legislation in this area. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of this case.

 Case No. 1880
Interim report

Complaint against the Government of Peru
presented by
the Federation of Peruvian Light and Power Workers (FTLFP)

Allegations: Various anti-union acts and interference, obstruction
of collective bargaining, interference in internal administration,
anti-union dismissals

577. The complaints in this case are set out in communications from the Federation of Peruvian Light and Power Workers (FTLFP) dated 9 April 1996. The complainant sent additional information in its communications of 10 May and 24 September 1996, 24 February, 17 March, 4 April and 13 August 1997. The FTLFP also submitted new allegations in its communication of 11 September 1997. The Government submitted its observations in its communications of 6 March and 23 September 1997.

578. 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).

A. Complainant's allegations

579. In its communications of 9 April, 10 May and 24 September 1996, the Federation of Peruvian Light and Power Workers (FTLFP) stated that as a result of the privatization of the electricity sector, new companies such as Electro Ucayali S.A. were created out of the assets of the Central Regional Public Electricity Supply Company -- Electrocentro S.A. The complainant alleges that the new management of Electro Ucayali S.A. has been carrying out various anti-trade union acts and interference with the Ucayali S.A. Branch of the Light and Power Workers' Union calculated to eliminate and cause the disappearance of trade union activity. These actions are described below:

(a) it has made the granting of contracts of employment for an open-ended period conditional on workers giving up their membership of that union;

(b) it has transferred the majority of workers belonging to the Ucayali S.A. Branch of the Light and Power Workers' Union to places other than those specified in their contracts of employment under the control of ELECTROCENTRO S.A.;

(c) on the one hand, the company has refused to hand over union dues deducted from its members in December 1995, and on the other, from January 1996, it has refused to continue deducting dues;

(d) it has been hostile to and obstructed trade union activities, by meddling in the internal affairs of the union, intimidating union leaders and has hinted at the creation of another trade union organization to evade its obligations under prior collective agreements.

580. In its communications of 24 February and 17 March 1997, the Federation of Peruvian Light and Power Workers complains that since May 1996, the date when the negotiations began, Electro Ucayali S.A. has refused to conclude a collective agreement, resorting to delaying tactics and devices, despite the good will and concessions made by the union. The complainant further alleges that 19 unionized workers were included in the list for "collective dismissal" including two members of the negotiating committee for the 1996-97 negotiating round who were prevented from entering the workplace, as well as two members of the executive board. The complainant also alleges that the company has been coercing workers to give up their union membership, by threatening to include them in the "collective dismissal" list if they refused. The foregoing, adds the complainant, is all calculated to reduce the number of trade union members to less than 20, and thus bring about the dissolution of the union and prevent the conclusion of collective bargaining.

581. In its communication of 4 April 1997, the Federation of Peruvian Light and Power Workers complains of interference by the Peruvian Institute of Social Security (IPSS) in the internal administration of the Federation. Specifically, the complainant alleges that officials of the IPSS inspected the Federation's accounting and personnel records, having established a supposed debt to the IPSS (equivalent to 13,468 US dollars), in respect of social security contributions and other social levies on Federation staff. The complainant explains that it concerned the National Officers of the Federation, the Legal Adviser, and the cleaning staff who are not employees of the Federation. The complainant further states that the IPSS threatened them with enforcement of the debt and distraint on their assets if the sum demanded was not paid.

582. In its communication of 13 August 1997, the Federation of Peruvian Light and Power Workers alleges that Mr. Jaime Tuesta Linares, defending secretary of the Electro Oriente S.A. Trade Union Branch was unfairly dismissed by the Eastern Regional Public Electricity Supply Company (Empresa de Servicio Público de Electricidad del Oriente), despite being protected by national trade union legislation. The complainant also alleges that the management of Electro Sur Este S.A. has launched a systematic campaign of threats of dismissal and anti-union harassment of trade union leaders and members, which has caused serious problems for the Workers' Union Branch in Electro Sur Este Abancay. As a result of this campaign, the company transferred the trade union branch secretary, Mr. Moisés Zegarra Ancalla, to another establishment rather a long way away (Chacapuente-Chalhunaca substation), thus preventing him from carrying out his functions as a trade union officer. Finally, the complainant adds that Mr. Adriel Villafuerte Collado, general secretary of the Electro Sur Este Trade Union Branch, Puno, was threatened with dismissal by the company, Electro Sur Este S.A. (Puno subregion), for alleged serious misconduct. Despite evidence of innocence provided by the union official, he was suspended for 30 days without pay as a penalty.

583. In its communication of 11 September 1997, the Federation of Peruvian Light and Power Workers alleges that in an appeal judgement of 14 August 1996, the Tacna Appeal Court (Corte Superior de Justicia) found definitively in favour of the Tacna and District Branch of the Light and Power Workers' Union, affiliated to the Federation of Peruvian Light and Power Workers, and against ELECTRO SUR S.A., and ordered it to pay salary increments to 111 workers, due under the arbitration award of 21 July 1993, as a result of the arbitration process which followed the collective bargaining for the period 1992-93. The complainant adds that under the judgement varying the judicial decision of 15 May 1995, the parties agreed, inter alia, to consolidate the arrears in a single exceptional payment of 2,300 new soles, as payment of arrears of wages, and that it would be exempt from social security contributions for IPSS, FONAVI, AFP and income tax, and that, in return, the complainant union branch would drop its action to enforce the court order. The complainant states that despite this agreement, ELECTRO SUR S.A. failed to abide by the above-mentioned agreement, and that in those circumstances, the Tacna and District Branch of the Light and Power Workers' Union was forced to continue proceedings to enforce the court order. The complainant alleges that in response to the union's action, in an act which is contrary to the exercise of trade union freedoms and inalienability of workers' rights, ELECTRO SUR S.A., in its letter number GA-500-97 of 23 August 1997, arbitrarily abused its powers in designating the non-cessation of legal proceedings as "serious misconduct", threatening to discipline the union representatives and hinting that they would dismiss the union officials if they did not comply with their demands.

B. The Government's reply

584. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to continue to deduct trade union dues from January 1996, the Government states in its communication of 6 March 1997 that under section 28 of the current Law on Collective Labour Relations, the employer, at the request of the trade union and with the written authority of the trade union member, is required to deduct trade union dues from wages. However, the Government adds that the possibility of payroll deduction is a formula which requires joint implementation by the trade union and the company in controlling trade union members' dues, but it is not the only method of collection of dues, since the trade union may collect them directly, or may resort to the courts for a ruling on the matter. The Government concludes that the trade union did none of these things. As for the various anti-trade union acts and interference by the company Electro Ucayali S.A. against the Federation alleged by the complainant, the Government states that these are merely unfounded allegations which do not warrant further investigation, unless the necessary evidence to support such allegations is provided.

585. Concerning the allegation of the refusal of the company Electro Ucayali S.A. to conclude a collective agreement since May 1996, in its communication of 23 September 1997, the Government states firstly that it is not true that the company has resorted to delaying tactics and devices as the complainant alleges, but that the delay was due to other matters and legal circumstances which arose during the negotiating process, which were settled by the Labour Administrative Authority, in accordance with its powers. The Government emphasizes that the collective bargaining process was concluded to the satisfaction of the parties, the agreements being adopted by direct negotiation, and the list of demands submitted by the trade union organization was settled.

586. Concerning the allegation of the inclusion in the list for "collective dismissal" of 19 trade union members, including two members of the negotiating committee for the 1996-97 bargaining round (who were prevented from entering the workplace), together with two members of the executive board, the Government states that originally, based on "objective grounds" of an economic, structural and technological nature as set out in the Law on Productivity and Competitiveness of Labour, and sections 80 and 82 of Legislative Decrees Nos. 855 and 871, the company Electro Ucayali S.A. sought the termination of the contracts of 19 workers, including four trade union officials. Once the company had demonstrated the above-mentioned objective grounds to the administrative authority, and after the conciliation meetings convened by that authority, approval was given to the termination of the contracts of only 14 workers, five being excluded from the process at the request of the company, including the four trade union officials to which the complaint refers and who are working normally in the company.

587. Concerning the allegation of the coercion by the company of workers to give up their trade union membership by threatening to include them on the list for "collective dismissal" if they did not do so, the Government states that this complaint is not justified, since current national legislation in this area protects workers against acts of anti-trade union discrimination and interference, and lays down appropriate penalties to discourage breach of such legislation. The Government explains that in the specific case of the Ucayali S.A. Branch of the Light and Power Workers' Union, several members decided to resign their membership, which led to cancellation of its registration, since it ceased to have the minimum number of 20 members required by current labour legislation. The Government adds that the trade union may request new registration after six months, once it has remedied the causes of cancellation. It also states that trade union members who feel that their trade union rights have been affected may take legal proceedings to enforce their rights.

C. The Committee's conclusions

588. The Committee notes that in the present case the complainant has alleged: (1) various anti-union acts and interference against the Ucayali S.A. Branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity; (2) obstruction of collective bargaining, anti-trade union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch; (3) interference by the Peruvian Institute for Social Security in the internal administration of the Federation; and (4) anti-trade union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A.

589. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to continue to deduct trade union dues for members of the Ucayali S.A. Branch of the Light and Power Workers' Union, the Committee takes note of the Government's indication that under section 28 of the current Law on Collective Labour Relations, the employer, at the request of the trade union and with the written authority of the trade union member, is required to deduct trade union dues from wages. It also takes note that, according to the Government, the possibility of payroll deduction is a formula which requires joint action by the trade union and the company to control trade union dues, and that the trade union may resort to the judicial authority for a ruling on the matter. The Committee requests the Government to adopt the necessary measures to ensure that the company complies with any request made by the trade union in accordance with the legislation on the deduction of trade union dues.

590. Concerning the other allegations of the various anti-trade union acts and interference by the company Electro Ucayali S.A. against the Ucayali S.A. Branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, the Committee notes with regret that the Government confines itself to replying that they are merely unfounded allegations which do not warrant further investigation. In this respect, the Committee reminds the Government that in ratifying Convention No. 98, it undertook to guarantee the application of Articles 1 and 2 of the Convention, which provide that workers shall enjoy adequate protection against acts of anti-union discrimination calculated to diminish trade union freedom in respect of their employment, and that their organizations shall have protection against any acts of interference. The Committee requests the Government to carry out an investigation without delay into the allegations listed below, and to keep it informed thereof:

(a) making the granting of an open-ended contract of employment conditional on workers resigning their membership of the trade union;

(b) the transfer to places other than those specified in their contracts of employment of the majority of workers belonging to the Ucayali S.A. Branch of the Light and Power Workers' Union, under the control of the company Electrocentro S.A.;

(c) the hostility towards and obstruction of trade union activity, interference in the internal affairs of the union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements.

591. Concerning the allegation of the refusal by the company Electro Ucayali S.A. to conclude a collective agreement since May 1996, the Committee takes due note that according to the Government, the process of collective bargaining has been concluded to the satisfaction of the parties, agreements having been adopted by direct negotiation, and the list of demands submitted by the trade union having been settled. In this respect, the Committee requests the Government to forward a copy of the collective agreements subsequently concluded and requests it to do everything possible to work with the parties so that difficulties that arise in the collective bargaining process are overcome much more quickly.

592. Concerning the allegation of the inclusion in the list for "collective dismissal" of 19 trade union members, including two members of the negotiating committee for the 1996-97 bargaining round, as well as two members of the executive board, the Committee takes due note that according to the Government, the approved list for termination of contracts affects only 14 workers, five of them having been excluded from the measure at the request of the company, and who are now working normally in the company. The Committee recalls 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724].

593. Concerning the allegation of coercion by the company of workers belonging to the trade union to resign their membership by threatening to include them on the list for "collective dismissal" if they do not do so, the Committee notes with regret that the Government has confined itself simply to stating that this allegation is not justified. Indeed, the Committee notes that the Government reports that current national legislation in this area protects workers against acts of anti-union discrimination and interference, but nevertheless, it does not state whether it has carried out an investigation into the facts of the matter. Furthermore, the Committee expresses its deep concern that following the events that formed the basis of the complaint, the union has had its registration cancelled because the number of members of the union concerned fell below the limit of 20 required by legislation due to the resignations from trade union membership.

594. In this respect, the Committee insists on what it stated in the initial paragraphs of its conclusions, and reminds the Government once more that in ratifying Convention No. 98, it undertook to guarantee the application of Articles 1 and 2 of the Convention, protecting workers not only in law but also in practice against any acts of anti-union discrimination, and their organizations against any acts of interference. The Committee requests the Government to carry out an investigation to determine to what extent the resignation of several members of the trade union was the result of pressure or otherwise by the company, especially taking into account that in this case there are several complaints against the company in question concerning anti-union acts and interference calculated to eliminate and cause the disappearance of trade union activities which have still not been investigated. The Committee requests the Government to keep it informed of the results of such investigations. As for the statement by the Government that the trade union may not immediately obtain new recognition once it has remedied the causes of its cancellation, but only six months later, the Committee reminds the Government that such a provision has recently been the subject of comments by the Committee of Experts as being in contravention of Convention No. 87, for which reason it requests the Government to adopt the necessary measures to amend that provision [see Report of the Committee of Experts, 1997, p. 191 of the English version].

595. As concerns the allegations of anti-union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A., the Committee notes that it has not received the reply of the Government and therefore it requests the Government to submit its observations on this matter without delay. The Committee also requests the Government to communicate its observations on the allegations concerning the failure by the company ELECTRO SUR S.A. to comply with an agreement to vary a judicial order, and the threats of disciplinary action and dismissals of union officials in the company in question.

The Committee's recommendations

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

(a) As concerns the allegation of the refusal by the company Electro Ucayali S.A. to continue to deduct trade union dues for members of the Ucayali S.A. Branch of the Light and Power Workers' Union, the Committee requests the Government to ensure that the company complies with any request made by the trade union in conformity with the relevant legislation.

(b) In respect of the other allegations of various anti-trade union acts and interference by the company Electro Ucayali S.A. against the Ucayali S.A. Branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, the Committee requests the Government to carry out an investigation without delay into those allegations and to keep it informed thereof.

(c) Concerning the allegation of the refusal by the company Electro Ucayali S.A. since May 1996 to conclude a collective agreement, the Committee requests the Government to send it a copy of the collective agreements subsequently concluded and to do everything possible to work with the parties so that difficulties that arise in the collective bargaining process are overcome much more quickly.

(d) As regards the inclusion in the list for "collective dismissal" of 14 trade union leaders and members, the Committee recalls 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. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom.

(e) Concerning the allegation of coercion by the company of workers belonging to the trade union to resign their membership, the Committee requests the Government to carry out an investigation to determine to what extent the resignation of several members of the trade union was the result of pressure or otherwise by the company and requests the Government to keep it informed of the results of that investigation. As for the impossibility of the trade union immediately obtaining new recognition once it has remedied the causes of its cancellation, but only six months later, the Committee requests the Government to adopt the necessary measures to amend that provision which is in violation of Convention No. 87.

(f) As concerns the allegations of anti-union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A., the Committee notes that it has not received the reply of the Government, and therefore it requests the Government to submit its observations on this matter without delay. The Committee also requests the Government to communicate its observations on the allegations concerning the failure by the company ELECTRO SUR S.A. to comply with an agreement to vary a judicial order, and the threats of disciplinary action and dismissals of union officials in the company in question.

 Case No. 1906
Interim report

Complaint against the Government of Peru
presented by
-- the World Federation of Trade Unions (WFTU)
-- the Federation of Construction Workers of Peru (FTCCP) and
-- the Union of Construction Workers of Lima and Balnearios

Allegations: Anti-union persecution and obstacles to
collective bargaining at the civil construction project level

597. The Committee examined this case at its meeting in March 1997 and presented an interim report to the Governing Body [see the 306th Report of the Committee, paras. 541-555, approved by the Governing Body at its 268th Session (March 1997)].

598. In communications dated 8 and 27 February and 20 October 1997, the Federation of Construction Workers of Peru (FTCCP) and the Union of Construction Workers of Lima and Balnearios sent allegations relating to obstacles to collective bargaining. The Government sent new observations in its communication dated 18 September 1997.

599. 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

600. In the recommendations of its meeting in March 1997, the Committee requested the Government to send its observations concerning the imposition by a judicial body of a one-year suspended sentence on the trade union officers of the Federation of Construction Workers of Peru (FTCCP), José Luis Risco Montalván, Secretary-General, Mario Huamán Rivera and Victor Herrera Rubiños, organizational secretaries, for allegedly disturbing the peace in November 1991 in the course of a trade union struggle to restore the single national list of workers' demands [see 306th Report, para. 555]. Likewise the Committee requested the Government to take measures, in consultation with the social partners, to amend legislation so that workers' organizations and employers and their organizations might exercise freely and without obstacles the right to collective bargaining at all levels.

B. The Government's reply

601. In its communication dated 18 September 1997, the Government states that there is no case of anti-union persecution against the trade union officers of the FTCCP, but there is a lawsuit against José Luis Risco Montalván, Secretary-General, Mario Huamán Rivera and Victor Herrera Rubiños, organizational secretaries, for the serious disturbances caused during November 1991. The Government adds that during the said lawsuit the judge of the fifth judicial tribunal of Lima, having established the existence of sufficient grounds to constitute an offence, opened legal proceedings against them on 22 September 1992 for breach of the peace and offences against the 30th National Police District of Peru and Member of Congress Fernando Olivera and others, acts for which they were eventually condemned to a one-year suspended prison sentence.

602. In December 1996 these trade union officers lodged an appeal to the Superior Court, which has been under review in the Sixth Judicial Chamber of the Superior Court since August 1997. The Government states that it will keep the Committee informed of any decision taken in this regard.

C. New allegations

603. In their communications dated 8 and 27 February 1997, the Federation of Construction Workers of Peru (FTCCP) and the Union of Construction Workers of Lima and Balnearios alleged that the Labour Commission of the Congress of the Republic approved Bill No. 2266, the fifth provisional regulation of which establishes collective bargaining in the construction industry at the construction project level, fixing as a prerequisite that such bargaining cannot be initiated until six months has elapsed from the full start of construction work. The plaintiffs add that if this Bill is approved with the above-mentioned fifth provisional regulation, it will be impossible to carry out collective bargaining in the construction industry since most construction projects have a duration of about four to six months.

604. In a communication of 20 October 1997, the FTCCP informs the Committee that José Luis Risco Montalván, Mario Huamán Rivera and Victor Herrera Rubiños, Secretary-General and union officers respectively, have been sentenced to two years' imprisonment pursuant to a decision of the Criminal Division of the Superior Court of Lima of 2 October 1997.

D. The Government's further reply

605. In its communication dated 18 September 1997, the Government states that there is a new draft Bill which will be reviewed by the Labour Commission of the Congress of the Republic, and that not only have they put aside Bill No. 2266 but they have in effect eliminated from its articles the regulation which forms the subject of the allegations by the plaintiff organizations.

E. The Committee's conclusions

606. The Committee observes that in these complaints the plaintiffs allege anti-union persecution against three trade union officers of the Federation of Construction Workers of Peru (FTCCP) who were given a one-year suspended prison sentence in 1991, and limitations to collective bargaining in the construction industry at the construction project level.

607. With regard to the allegations concerning the sentencing on 2 October 1997 to two years' imprisonment of the trade union officers José Luis Risco Montalván, Secretary-General, Mario Huamán Rivera and Victor Herrera Rubiños, organizational secretaries, the Committee requests the Government to forward its observations on this matter.

608. With regard to the fifth provisional regulation of Bill No. 2266 which prevents collective bargaining in the construction industry at the construction project level prior to the elapse of six months from the full start of construction work, the Committee notes with interest that, according to the Government's statement, such a limitation which restricted collective bargaining was removed from the new draft Bill to be reviewed by the Labour Commission of the Congress of the Republic. The Committee requests the Government to keep it informed of the final approval of the new draft Bill with regard to the issue raised, and to ensure that the collective bargaining parties are entitled to negotiate at all levels.

The Committee's recommendations

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

(a) With regard to the allegations concerning the sentencing on 2 October 1997 to two years' imprisonment of the trade union officers of the Federation of Construction Workers of Peru (FTCCP), José Luis Risco Montalván, Mario Huamán Rivera and Victor Herrera Rubiños, the Committee requests the Government to forward its observations on this matter.

(b) As regards the fifth provisional regulation of Bill No. 2266 which prevents collective bargaining in the construction industry at the construction project level prior to the elapse of six months from the full start of construction work, the Committee requests the Government to keep it informed of the final approval of the new draft Bill which according to the Government removes such limitation, and to ensure that the collective bargaining parties are entitled to negotiate at all levels.

Case No. 1926
Report in which the Committee
requests to be kept informed of developments

Complaint against the Government of Peru
presented by
-- the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) and
-- the General Confederation of Workers of Peru (CGTP)

Allegations: Non-recognition of the representative character of
a branch trade union and refusal to engage in collective bargaining,
a dismissal of several union officers, and acts of anti-union discrimination

610. The complaints in this case are contained in communications from the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) and the General Confederation of Workers of Peru (CGTP), dated 10 and 15 April 1997. The Government sent its observations in a communication dated 30 July 1997.

611. 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).

A. The complainants' allegations

612. In a communication dated 10 April 1997, the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) points out that as a result of the privatization of the former Electrolima S.A. enterprise, its members were dispersed in separate workplaces responsible for the generation, distribution and sale of electricity in the Department of Lima, including the Luz del Sur S.A enterprise. According to its by-laws, SUTREL's members are workers from enterprises in the electricity sector, as well as enterprises from allied and subsidiary branches which are directly related to the electricity sector, as is the case of the Luz del Sur Servicios S.A. enterprise. SUTREL adds that since it was founded in 1994, it has continually been subjected to acts of anti-union discrimination by the enterprises in this sector in complicity with the labour authorities, aimed at non-recognition of the representative character of its trade union sections within each enterprise.

613. This, alleges the complainant, is the case in the Luz del Sur Servicios S.A. enterprise which has refused to engage in collective bargaining on grounds of non-recognition of the representative character of the SUTREL trade union section in the enterprise. This refusal is based, according to the enterprise, on the fact that it is not linked to the electricity branch, but comes under the service sector, and given that SUTREL is a branch union, it is not authorized to represent any of the workers of the Luz del Sur Servicios S.A. enterprise.

614. The complainant points out that, prior to this refusal, the Ministry of Labour and Social Welfare summoned the enterprise which submitted a collective agreement signed by representatives of the majority of workers, supposedly chosen voluntarily, declaring non-recognition of the legal existence of the SUTREL trade union section. This collective agreement was ultimately registered by the labour authority.

615. In this connection, the complainant alleges that neither the Luz del Sur Servicios S.A. enterprise nor the labour authority acknowledges that its members within the enterprise continue to perform the same jobs which they held a few years ago under the registered name Luz del Sur S.A., and it is therefore absurd that previously they were considered as workers connected with the electricity sector, and now they are not, although they carry out the same tasks in the Luz del Sur Servicios S.A. enterprise. The complainant adds that although the range of activities of the enterprise has expanded, its workers continue to provide services for the same client enterprises and the same users, hence they should not be denied the union rights which they had acquired.

616. The complainant also adds that the Luz del Sur Servicios S.A. enterprise pressured its workers who were not members of the SUTREL enterprise trade union section to sign a collective agreement, with the intention of lending force to their non-recognition of the union and thus contributing to weakening branch-level collective bargaining. Moreover, adds the complainant, a document presented to the labour authority by the enterprise expressly states that the minimum benefits granted by Luz del Sur Servicios S.A. to its workers will be the same as those provided to the workers of Luz del Sur S.A., corresponding to the same bargaining period. This again shows quite clearly that both Luz del Sur S.A. and Luz del Sur Servicios S.A. belong to the same branch of activity, and therefore the existence of the SUTREL trade union section in the enterprise is justified.

617. In its communication dated 15 April 1997, the General Confederation of Workers of Peru (CGTP) alleges the dismissal of a number of union officers, protected by union immunity, by their inclusion in the process of collective termination of employment for objective reasons, under Legislative Decree No. 855 of October 1996, amending the Employment Promotion Act. The dismissals apply to all the officers of the Union of Backus and Johnston Brewery Workers and the Brewery Federation of Peru, and to the northern region undersecretary of the CGTP (with the exception of the economic secretary of the CGTP, who is being threatened with administrative proceedings), the officers of the Single Union of Lighting and Power Workers of Electro Ucayali, and one officer of the Single Union of Workers of Electroperú of the Interconnected System.

618. The complainant further alleges that two officers of the Single Union of Electricity Workers of the South-East and of the Federation of Lighting and Power Workers of Peru have been threatened with dismissal, supposedly on the grounds of offences committed by them a year ago, having been suspended without pay for 30 days for having participated in union activities.

B. The Government's reply

619. In relation to the allegations of SUTREL, in its communication of 30 July 1997 the Government declares that the SUTREL trade union section does not have representative character nor legitimacy for the purposes of collective bargaining since its members only number 14 out of a total of 73 workers employed in the enterprise. For this reason, as provided by section 47 of the Industrial Relations Act, since there is no enterprise union in Luz del Sur Servicios S.A., the absolute majority of workers in the enterprise, through their representatives elected in general assembly, signed a collective agreement on 10 January 1997, and for which this reason the Ministry of Labour declared the presentation of a list of demands by the SUTREL trade union section to be unlawful.

620. With regard to the allegations of the CGTP concerning the dismissal of officers of several unions who were protected by union immunity by their inclusion in the process of collective lay-offs, for objective reasons, the Government firstly points out that section 16 of Presidential Decree No. 003-97-TR which approved the consolidated text of Legislative Decree No. 728 -- the Act respecting productivity and labour competitivity -- lists among the grounds for the termination of contract of employment, dismissal and the objective reasons therefor in cases and forms permitted by the said enactment. In respect of objective reasons, section 46 of the above-mentioned Presidential Decree classifies them as follows: acts of God and force majeure; economic, technological, structural or similar grounds; dissolution and liquidation of a enterprise and bankruptcy; and national restructuring of assets.

621. The Government adds that bearing this legal framework in mind, it can be seen that the above-mentioned grounds for termination of employment are by nature different: while dismissal is the result of a unilateral decision by the employer which affects the worker as an individual, the effects produced by objective reasons extend to a group of workers or to all the workers in an enterprise, whose employment relationship is terminated on the same grounds. Consequently, the national legislation differentiates between the above-mentioned grounds for termination of employment: in the case of dismissal, it provides for the possibility of taking legal action in cases of nullity, arbitrary dismissal and hostility. On the other hand, in the case of objective reasons (acts of God and force majeure and economic, technological, structural or similar grounds), the workers affected have the right of priority of rehiring if the employer decides to hire new staff either directly or through a third party.

622. The Government concludes that although section 30 of the Industrial Relations Act guarantees that certain workers shall not be dismissed without just cause that has been duly demonstrated, in the light of the above explanation concerning legal distinction between dismissal and objective causes, in the case of the latter union immunity does not apply.

623. Concerning the second allegation of the CGTP relating to threats of dismissal received by union officers for supposed offenses and suspension from work without pay for 30 days for having participated in union activities, the Government reports that under sections 30 and 36 of the Act respecting productivity and labour competitivity and section 57 of Presidential Decree No. 017-93-JUS, respectively, the workers concerned can bring their grievances before the judiciary.

C. The Committee conclusions

624. The Committee observes that in this case the complainants have alleged: (1) the non-recognition of the representative character of the SUTREL trade union section by the Luz del Sur Servicios S.A. enterprise and, as a consequence, its refusal to bargain collectively; (2) the dismissal of several union officers and acts of anti-union discrimination.

625. Concerning the allegation by the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) of non-recognition of the representative character of the SUTREL trade union section by the Luz del Sur Servicios S.A. enterprise and its consequent refusal to bargain collectively, the Committee observes, firstly, that the complainant asserts that the enterprise's justification for such non-recognition is founded on the enterprise's not being linked to the electricity branch but to the service sector and that given that SUTREL is a branch union, it is not authorized to represent any of the enterprise's workers.

626. In this connection, the Committee notes that the complainant argues that the Luz del Sur Servicios S.A. enterprise is indeed linked to the electricity branch and therefore the existence of the SUTREL trade union section in such an enterprise is indeed justified since its members in that enterprise continue to perform the same jobs that they held a few years ago under the registered name Luz del Sur S.A., under which they were indeed considered as workers connected with the electrical branch, and now they are not, although they continue to carry out the same tasks in the Luz del Sur Servicios S.A. enterprise. Another argument of the complainant on this subject refers to the fact that the document submitted by the enterprise to the labour authority expressly states that the minimum benefits granted by Luz del Sur Servicios S.A. to its workers would be the same as those provided to the workers of Luz del Sur S.A., corresponding to the same bargaining period.

627. On the one hand, the Committee observes that in its reply the Government does not reject the above-mentioned arguments of the complainants, but referring to the SUTREL trade union section, it treats it as an enterprise union when it states that it does not have representative character for purposes of collective bargaining since its members number only 14 out of a total of 73 workers employed in the enterprise, and, pursuant to section 47 of the Industrial Relations Act, since there is not an enterprise union in Luz del Sur Servicios S.A., the absolute majority of workers of the enterprise signed a collective agreement. The Committee also observes that the Government does not deny the allegation that the workers of the enterprise who are not members of the SUTREL trade union section were pressurized into signing a collective agreement. On the other hand, the Committee recalls that in another case of Peru (Case No. 1845), it examined allegations by SUTREL to the effect that the administrative authority had required the union to establish a trade union section at enterprise level in order to bargain collectively at that level although it was a branch union, and the Government had not responded to these allegations [see 302nd Report, para. 516].

628. In the opinion of the Committee, the principal difficulty in this allegation is centred on the enterprise's refusal to recognize the legal status of the trade union section of SUTREL, as a branch union to represent its members. In this respect, the Committee firstly reminds the Government that under Article 2 of Convention No. 87, workers have the right to establish and join organizations of their own choosing. As regards collective bargaining with non-union representatives, the Committee reminds the Government that the Collective Agreements Recommendation, 1951 (No. 91) stresses the role of workers' organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only in the absence of such organization. In these circumstances, direct negotiation between the enterprise and its workers, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation should be encouraged and promoted between organizations of employers and workers [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 785]. In this connection, the Committee requests the Government to take the necessary measures to recognize the right of the SUTREL trade union section to represent its members and bargain collectively on conditions of work, at least on behalf of its own members.

629. The Committee also observes that prior to the present complaint it already had occasion to examine several cases concerning obstacles in legislation and practice to collective bargaining at branch level in which objections were raised about the legal provisions of the Industrial Relations Act, governing the level of collective bargaining. The Committee would, therefore, refer to the conclusions which it had reached on those occasions, in which it considered that "according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that, consequently, the level of negotiation should not be imposed by law. The Committee considers that the requirement of a majority, not only of the number of workers, but also of enterprises, in order to conclude a collective agreement for a branch of activity or occupation set out in section 46 of the Industrial Relations Act of 1992 could give rise to problems in the application of Convention No. 98". As it did on those occasions, "the Committee requests the Government, in consultation with the social partners, to take measures to amend legislation so that workers' organizations and employers and their organizations may exercise freely and without obstacles the right to collective bargaining at all levels" [see 306th Report, Case No. 1906, para. 553].

630. With regard to the allegations of the General Confederation of Workers of Peru (CGTP) on the dismissal of officers of several trade union organizations who were protected by union immunity, by their inclusion in the process of collective termination of employment for objective reasons, the Committee notes that according to the statement of the Government, section 16 of Presidential Decree No. 003-97-TR -- the Act respecting productivity and labour competitivity -- lists among the grounds for termination of a contract of employment objective reasons, which according to section 46 of the said Presidential Decree are classified, inter alia, as economic, technological, structural or similar grounds. The effects produced by objective reasons extend to a group of workers or all the workers in an enterprise whose relationship is terminated on the same grounds, and in its application trade union immunity is not taken into account.

631. Notwithstanding, the Committee, as it has done in other similar cases of Peru, regrets that the Government has not provided any information to clarify the allegedly anti-union nature of the application of the process of collective termination of employment for objective reasons, above all, taking into account, on the one hand, as is pointed out by the Government, the fact that the effects produced by objective reasons can extend to a group of workers in the enterprise, and, on the other hand, as is mentioned in the allegations, the fact that almost all the officers of the two organizations were dismissed.

632. The Committee, as it urged in other similar cases concerning Peru, requests the Government to carry out an investigation into the alleged anti-union nature of such dismissals and to keep the Committee informed on this matter. Likewise, the Committee requests the Government to ensure that when the process of collective termination of employment for objective reasons is implemented, negotiations are held between the enterprises concerned and the trade union organizations, and to take the necessary measures to ensure that in future the application of such processes is not used to carry out acts of anti-union discrimination [see Cases Nos. 1796 and 1878, Peru, 306th and 307th Reports, paras. 506 and 453, respectively].

633. With regard to the allegations of the CGTP concerning threats of dismissal received by union officers for supposed offences, and their suspension from work without pay for 30 days for having participated in trade union activities, the Committee regrets to observe that the Government confines itself to pointing out that under the national legislation, the workers concerned can bring their grievances before the judiciary, and has not investigated the alleged acts of anti-union discrimination or punished the guilty parties, if indeed they carried out such acts. In this connection, the Committee reminds the Government that the Committee of Experts on the Application of Conventions and Recommendations has formulated observations concerning Peru's application of Convention No. 98 in view of the "absence of effective and sufficiently dissuasive sanctions to guarantee the protection of workers against acts of anti-union discrimination and to protect workers' organizations against acts of interference by employers (Articles 1 and 2 of the Convention)". In this connection, the Committee, like the Committee of Experts, urges the Government to take appropriate measures to guarantee the full application of the Convention as soon as possible [see Report of the Committee of Experts 1996, p. 214] and request the Government to keep it informed of developments in this respect.

The Committee's recommendations

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

(a) As regards the allegations concerning the non-recognition of the representative character of the SUTREL trade union section by the Luz del Sur Servicios S.A. enterprise and its consequent refusal to engage in collective bargaining, the Committee requests the Government to take the necessary steps to recognize the SUTREL trade union sector's right to represent its members and bargain collectively on conditions of employment, at least on behalf of its own members.

(b) The Committee requests the Government, in consultation with the social partners, to take steps to amend the legislation so as to enable workers' organizations and employers and their organizations to, to exercise freely and without impediment their right to bargain collectively at all levels.

(c) As regards the allegations of the General Confederation of Workers of Peru (CGTP) concerning the dismissal of the officers of several trade union organizations, the Committee requests the Government once again to carry out an inquiry into the alleged anti-union nature of such dismissals, and to keep the Committee informed in this respect.

(d) The Committee requests the Government to ensure that, where it is necessary to implement the process of collective termination of employment for objective reasons, negotiations are held between the enterprises concerned and the trade union organizations, and to take the necessary measures to ensure that in future the application of such processes will not be used to carry out acts of anti-union discrimination.

(e) As regards the allegations of the CGTP concerning threats of dismissal received by trade union officers for supposed offences and a suspension from work without pay for 30 days for having participated in trade union activities, the Committee urges the Government to take the appropriate measures to guarantee the full application of the Convention, as soon as possible, and requests the Government to keep it informed of developments in this respect.

Case No. 1914
Interim report

Complaint against the Government of the Philippines
presented by
the Telefunken Semiconductors Employees' Union (TSEU)

Allegations: Dismissal of trade unionists further to strike action;
detention of unionists; and acts of violence against strikers

635. In a communication of 6 January 1997, the Telefunken Semiconductors Employees' Union (TSEU) submitted a complaint of violations of freedom of association against the Government of the Philippines. The TSEU provided additional information in a communication dated 3 February 1997 along with attachments.

636. The Government supplied its observations on the case in communications dated 19 March and 17 September 1997.

637. The Philippines 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

638. The Telefunken Semiconductors Employees' Union (TSEU) contends that the Government has violated Conventions Nos. 87 and 98 by the repeated failure of its Department of Labor and Employment (DOLE) to enforce its own final and executory order for the reinstatement of some 1,500 TSEU members.

639. The TSEU then proceeds to explain the background to its complaint. It states that it is the duly certified sole and exclusive bargaining agent of all rank-and-file employees of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") which has a total workforce of about 3,500 workers, 90 per cent of whom are women.

640. On 2 June 1995, a certification election was held in TEMIC in which the TSEU emerged victorious and was subsequently certified as the sole and exclusive bargaining agent. Soon after the expiration of the 1993-94 collective bargaining agreement (CBA), the parties began collective bargaining negotiations for the conclusion of a new CBA. On 25 August 1995, the parties reached a deadlock in their CBA negotiations. Thereafter, the TSEU states that it filed on 28 August 1995 a notice of strike on grounds of CBA deadlock and unfair labour practices, specifically, the constructive dismissal of three logistic coordinators who were union shop stewards; flagrant violation of the 1993-94 CBA provisions "such as failure to provide uniforms, non-payment of hazard pay and interference with the workers' right to self-organization". On 3 September 1995, the TSEU conducted a strike vote balloting among its members, the results of which showed overwhelming support for a strike. On 14 September 1995, the TSEU conducted the actual strike.

641. On 16 September 1995, Acting Labor Secretary Jose Brillantes issued an Order directing all striking workers to return to work and for the company to admit them back under the same terms and conditions prevailing prior to the strike. The TSEU then contends that on 23 September 1995, five union members were picked up and detained at blocks 1 and 2 of the Taguig police station and later at the Taguig Municipal Jail. On 26 September 1995, the five detained union members were released based on Ministry Circular No. 9 which the then Ministry of Justice issued on 22 May 1985. The circular requires prior clearance from the Department of Labor and Employment before criminal cases arising from labour disputes may be filed. The release order was signed by three senior prosecutors of the Office of the City Prosecutor of Pasig.

642. The TSEU then goes on to say that on 29 September, 8 and 22 November 1995 some TEMIC supervisors filed complaints against officers, shop stewards and some union members whose reinstatement had been previously ordered by Acting Secretary Brillantes. The TSEU asserts that these complaints, which allege that over 200 TEMIC supervisors had been prevented from leaving company premises by striking TSEU members, were baseless. On 12 October 1995, the parties submitted their respective position papers on the issues of bargaining deadlock, the parties' respective charges of unfair labour practice and the legality or illegality of the strike.

643. With regard to the issue of violence against strikers, the TSEU asserts that on 20 October 1995, during a union meeting at the picket line, company security guards and hired goons sprayed tear-gas and water at the strikers. The latter were also stoned by said goons. On 21 October 1995, the union's picket line was ransacked by company security guards assisted by Taguig policemen. After the incident, the union requested Philippine National Police Director-General Recaredo Sarmiento to investigate the incident and to take appropriate action against the Taguig policemen. All told, the strikers were violently dispersed four times and many of them were injured, including pregnant workers.

644. On 27 October 1995, Acting Secretary Brillantes issued an Order decreeing an arbitral award. The Order also found the parties' respective charges of unfair labour practice without merit. The Order furthermore deferred resolution on the issue of the legality or illegality of the strike and instead ordered the conduct of a hearing on the matter, pending the resolution of which issue TEMIC was ordered anew to accept back the striking workers "except the union officers, shop stewards and those with pending criminal charges". Both TEMIC and the TSEU filed the motions for reconsideration of the Order on 8 and 9 November 1995, respectively. On 8 November 1995, an affidavit complaint was filed by TEMIC's Logistics Manager, Volker Rudnitzki, against 1,462 employees of TEMIC for serious illegal detention and physical injuries. On 9 November 1995, the TSEU filed a manifestation on the refusal of TEMIC to accept back the striking workers in violation of the Order of the Secretary dated 27 October 1995.

645. On 15 November 1995, a conference was held among representatives of the union, the company and DOLE regarding the enforcement of the 27 October 1995 Order during which the company committed to submit a list of striking workers to be scheduled for work. On 21 November 1995, the union received from TEMIC a list of the names of 800 employees constituting the first batch to be reinstated. On 22 November 1995, another complaint affidavit for serious illegal detention and physical injuries was filed, this time by Norma Blas, TEMIC's Administration Manager, against 1,639 TEMIC employees. Two days later, during a conference at the DOLE, the company manifested that it would accept back only those employees included in the list it had earlier submitted.

646. On the same date, the Acting Secretary issued an Order which affirmed the 27 October 1995 Order with respect to the portion excluding union officers, shop stewards and those with pending criminal charges from being accepted back by the company pending resolution of the issue involving the legality or illegality of the strike. The TSEU indicates that it then filed an ex parte motion for clarification regarding who was covered by the exclusionary clause in the 27 October 1995 Order. The Acting Secretary issued an Order clarifying, on 7 December 1995, that the exclusion covered only those with pending criminal charges as of the issuance of the 27 October 1995 Order and not those against whom charges had been filed subsequently by some TEMIC supervisors. On 11 December 1995, TEMIC filed a manifestation and motion for reconsideration of the 7 December 1995 Order. On 18 December 1995, the TSEU filed a motion for the issuance of a Writ of Execution to compel TEMIC to accept back all reporting workers.

647. The TSEU adds that it took the matter to the Supreme Court where it filed a petition for certiorari on 3 January 1996, questioning the portion of the 27 October 1995 Order excluding union officers, shop stewards and those with pending criminal charges from being accepted by TEMIC back to work. On 27 June 1996, the Labor Secretary Quisumbing issued a Writ of Execution holding that the Orders of 27 October 1995 and 24 November 1995 "have long become final and executory" and ordering DOLE's Sheriff Edgar Paredes to effect the actual physical reinstatement of the workers listed in the writ's attached annex and to seek the aid of the Taguig police station which the Secretary deputized for the enforcement of his Orders.

648. The TSEU indicates that Sheriff Paredes proceeded to TEMIC to enforce the writ on 1 July 1996. However, the company's counsel requested time to confer with his client before the writ was enforced. As a result, the company filed with the Office of the Secretary a motion to quash, recall and/or suspend the Writ of Execution on 3 July 1996. Five days later, Sheriff Paredes proceeded once more to TEMIC and conferred with TEMIC's personnel manager who informed the Sheriff that, in view of TEMIC's pending motion to quash the writ, it would not comply with the same. Subsequently, the Sheriff filed his return reporting that the company had refused to comply with the writ. He recommended that TEMIC's President, Frank Dieter Mayer, its General Manager, Michael Facundo, its Administration Manager, Norma Blas, and its Personnel Manager, Atty. Miguel Umali, all be cited for contempt. The Sheriff also recommended that the company be ordered to pay "the salary differentials of the affected workers from the time of service of the writ".

649. On 9 August 1996, the TSEU filed before the Supreme Court a consolidated reply to the comments of the company in which the union manifested that the company had been refusing to comply with the Writ of Execution issued by Secretary Quisumbing. The TSEU argued that the 27 October 1995 Order's exclusionary clause was being used by TEMIC to effect a mass lay-off. In its reply filed before the Office of the Secretary on 2 September 1996, the company claimed that its motion for reconsideration dated 11 December 1995 remained unresolved; moreover, the phrase "those with pending criminal charges" in the 27 October 1995 Order was "vague". On 23 September 1996, in its rejoinder to the company's reply of 2 September 1996, The TSEU filed an omnibus motion for the issuance of an Alias Writ of Execution and to cite TEMIC's management in contempt. The TSEU argued that the company merely pretended to find the disputed phrase ambiguous and was in fact using it to effect a mass lay-off. Also on 23 September 1996, the Supreme Court issued a resolution giving due course to the TSEU's petition for certiorari and ordered the parties to submit simultaneously their respective memoranda.

650. The TSEU contends that, on 17 October 1996, Secretary Quisumbing issued an Order denying the company's motion to quash the Writ of Execution, ruling that the 27 October 1995 and 24 November 1995 Orders were "explicit and free of any ambiguity" and directed the issuance of an Alias Writ of Execution for the actual physical reinstatement of the affected workers. The Secretary further directed that, in the event the actual and physical reinstatement was not effected, the company should immediately reinstate the workers on the payroll.

651. On 23 October 1996, TEMIC filed with the Office of the Secretary a motion for reconsideration of the 17 October 1996 Order. The motion was based on the ground that although the affidavits concerning the complaints of illegal detention and physical injury were filed by TEMIC after 27 October 1995 with the Prosecutor's Office, the incidents related thereto were reported to the police before that date, and therefore should also serve as a bar to the reinstatement of the workers concerned. Moreover, because of the union's 3 January 1996 petition with the Supreme Court, the Secretary could no longer have his Order enforced. In an opposition dated 6 November 1996, the union argued that crime reports in police blotters do not count as "criminal charges" and therefore could not be invoked to deny reinstatement to the affected workers; furthermore, the issue raised by the union before the Supreme Court was different from the issue raised by TEMIC and that the court had not issued a temporary restraining order against the DOLE which could, therefore, proceed with the enforcement of the Order for Reinstatement.

652. The TSEU points out that on 21 November 1996 Secretary Quisumbing issued an Order denying TEMIC's motion for reconsideration and affirming his 17 October 1996 Order for the issuance of an Alias Writ of Execution. The Secretary held that complaints filed with the police and even with the Prosecutor's Office could not be considered as the "criminal charges" mentioned in the 27 October 1995 Order. He also ordered the parties to submit their respective position papers on the issue of the legality or illegality of the strike. On 3 December 1996 DOLE's Sheriff Francisco Reyes proceeded to TEMIC to enforce the 21 November 1996 Order by the Labor Secretary. However, TEMIC's personnel manager informed him that the company would refuse to comply with the Order and that the company would question it before the Supreme Court. On 4 December 1996, DOLE's technical assistant for the Director of Legal Services proceeded to TEMIC accompanied by Sheriffs Reyes and Mario Gadit, together with the Chief of Police of Taguig and some policemen. Once more TEMIC refused to comply with the Order.

653. On 8 November 1996, the company asked the Supreme Court for an additional period of 15 days to file its memorandum, i.e. until 23 November 1996. On 9 November 1996, the union filed with the Supreme Court its memorandum arguing along the same lines as in its consolidated reply dated 9 August 1996. Moreover, on 18 November 1996, the union filed its opposition to the company's motion for the Supreme Court to grant it additional time to file its memorandum on the ground that an extension would only delay the resolution of the petition. On 21 November 1996, the company asked the Supreme Court that it be given until 9 December 1996 to file its required memorandum.

654. On 9 December 1996, the company filed with the Supreme Court a petition for certiorari, questioning the 21 November 1996 Order of the Labor Secretary. It also prayed for the immediate issuance of a temporary restraining order against the enforcement of the questioned Order. The union sent a letter on 17 December 1996 to President Ramos, requesting an audience where the President could personally hear the workers' grievances on the failure of DOLE to enforce its own Orders for Reinstatement. On the same day the company filed with the Supreme Court an urgent motion for the issuance of a temporary restraining order which it had also prayed for in its petition.

655. On 18 December 1996, the Office of the City Prosecutor of Pasig issued a consolidated resolution dismissing the complaints affidavits filed by TEMIC's Administration Manager, Norma Blas, its Logistics Manager, Volker Rudnitzki, and the company's supervisors against the 1,500 or so workers. The TSEU recalls that the Secretary's Order of 27 October 1995 made the pendency of criminal charges against the workers as the basis of their exclusion from the Reinstatement Order. On 20 December 1996, the head executive assistant in the Office of the Secretary announced that, in view of the pendency of the petition for certiorari filed by the company in the Supreme Court, the DOLE was deferring the enforcement of its Orders for Reinstatement. Union representatives countered that since the Supreme Court had not issued a temporary restraining order, there was no legal obstacle to the enforcement of the Orders. In view of this development, and as a protest action, the union held a vigil at the premises of the Office of the Secretary until reinstatement of the workers was effected. Secretary Quisumbing himself arrived later that night and agreed to allow the workers to stay. The Secretary also advised the union's counsel to submit an ex parte motion for garnishment which he promised to grant.

656. On 21 December 1996 the union, as advised by Secretary Quisumbing himself, filed an urgent motion for garnishment and/or attachment, noting that the Supreme Court had not issued a temporary restraining order to enjoin the enforcement of the Orders for Reinstatement. The union argued that, in view of the refusal of TEMIC to comply with the Orders for Reinstatement, the company's deposits in banks which the union had identified in its motion, be garnished for the payment of the workers' back wages. On 23 December 1996 the union received a reply from the Presidential Palace of Malacanang which justified TEMIC's refusal to obey the DOLE's Orders for Reinstatement as based on the fact that the union itself had brought the matter to the Supreme Court. On the same date, Secretary Quisumbing issued an Order requiring the company to submit its comments on the union's urgent motion for garnishment filed on 21 December 1996. In a comment/opposition dated 27 December 1996 which it filed with the Office of the Secretary, TEMIC opposed the union's motion for garnishment of the company's bank deposits on the ground that the Secretary had no such power since TEMIC has filed its petition for certiorari with the Supreme Court.

657. On 30 December 1996, Secretary Quisumbing wrote to the Director-General of the Philippine National Police (PNP) requesting "assistance" with respect to the presence of the workers at DOLE, which he claimed was causing "very serious danger". At around 12.30 p.m. on 31 December 1996, after having spent Christmas at the DOLE premises, the workers were violently dispersed by the PNP. Many of the workers were injured. They were later detained at the Western Police District Headquarters. At the inquest conducted before the Manila Prosecutor's Office in the afternoon of 31 December 1996, the union's counsel argued that the workers did not commit any offence. The workers were later ordered to be released.

658. On 13 January 1997, Executive Secretary Ruben Torres wrote to Jaime Cardinal Sin, Archbishop of Manila, explaining that in view of the union's and the company's respective petitions with the Supreme Court, "out of respect to a co-equal body", the executive department was deferring action on the labour case. Mr. Torres, moreover, stated that there was "no factual and legal basis to the claim" that Secretary Quisumbing's Orders had become final as to be a proper subject of Writs of Execution.

659. The TSEU, for its part, indicates that it filed with the Office of the Secretary its reply to the company's opposition to its motion for garnishment in which it argued that because of TEMIC's refusal to obey the Orders for Reinstatement, the garnishment of the company's bank deposits to pay the workers' back wages was legally justified as a "make-whole" economic remedy. Additionally, the TSEU cited jurisprudence which held that an Order for Reinstatement was enforceable even pending the determination of the legality or illegality of a strike. On 28 January 1997, the union filed a manifestation and motion in which it informed the Labor Secretary that the criminal complaints filed by TEMIC's managers against the 1,500 or so workers had already been dismissed on 18 December 1996 by the Pasig Prosecutor's Office. In addition, the TSEU filed with the Supreme Court its supplemental opposition to the company's urgent motion for the issuance of a temporary restraining order. The union contended that the Court should not look with favour on the inconsistency of TEMIC: while it was the company itself which petitioned the Secretary to assume jurisdiction over the labour dispute, TEMIC was now questioning the Secretary's orders in the exercise of such jurisdiction. Finally, the TSEU filed a manifestation and motion with the Supreme Court to issue a Writ of Preliminary Mandatory Injunction, this time not only for the reinstatement of the union officers, shop stewards and "those with pending criminal charges" which had already been dismissed, but also for all the rest of the 1,500 workers whose reinstatement continued to be blocked by TEMIC. In a resolution dated 13 January 1997, the Supreme Court notified the parties that their separate petitions had been consolidated. In the same resolution, the Court also granted TEMIC's three motions for extension of time to file its memorandum while requiring the union to submit its comment on the company's own petition. The Court also merely noted the company's urgent manifestation and motion for the issuance of a temporary restraining order.

B. The Government's reply

660. In its initial reply dated 19 March 1997, the Government points out that the Temic Telefunken Microelectronics (Phils.) Inc. case is already outside the jurisdiction of the Labor Department and is now with the Supreme Court of the Philippines on account of the petitions filed by the parties. Indeed, the Supreme Court has taken cognizance of the two petitions by consolidating them in a resolution dated 13 January 1997.

661. The Government further points out that the "eviction" of the members of the Telefunken Semiconductors Employees' Union (TSEU) from within the office premises of the Secretary of Labor and Employment on 30 December 1996, was carried out pursuant to section 4 of the "Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Redress of Grievances and for Other Purposes", which provides that:

662. In its more recent communication of 17 September 1997, the Government indicates that the Order issued by the Secretary of Labor and Employment on 21 November 1996 affirming and ordering the immediate execution of the Order dated 17 October 1996 reinstating, actually and physically, the workers of Temic Telefunken Inc. had been duly served by the Sheriff designated by the Legal Service of the Department of Labor and Employment but was returned unsatisfied and unexecuted last 3 December 1996. The Government states that the management of Temic Telefunken Inc. refused to honour the return-to-work Order on the contention that such Order could not yet be enforced in view of the pending petition for certiorari filed by the management with the Supreme Court. The Government adds that the entire records of the case have been turned over to the Office of the Solicitor-General for proper representation. Finally, to date the Supreme Court has not yet promulgated a decision on the case.

C. The Committee's conclusions

663. The Committee notes that the allegations in this case concern the dismissal of approximately 1,500 officials and members of the Telefunken Semiconductors Employees' Union (TSEU) who participated in strike action and the refusal of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") to abide by various Orders of the Department of Labor and Employment (DOLE) to reinstate these workers in their jobs, as well as the subsequent failure of the Government to enforce the DOLE's Orders for Reinstatement. These allegations also refer to the detention of five union members and to acts of violence carried out against strikers by company security guards as well as the police.

664. As regards the alleged dismissal of around 1,500 TSEU members further to their participation in strike action, the Committee notes that on 16 September 1995 Acting Labor Secretary Jose Brillantes issued an Order directing all striking workers to return to work and for the company to admit them back under the same terms and conditions prevailing prior to the strike. On 27 October 1995, the Acting Secretary issued another Order which deferred resolution on the issue of the legality or illegality of the strike and instead ordered the conduct of a hearing on the matter, pending the resolution of which issue TEMIC was ordered anew to accept back the striking workers "except the union officers, shop stewards and those with pending criminal charges". However, shortly afterwards, i.e. on 8 and 22 November 1995 respectively, two TEMIC supervisors filed complaints against approximately 1,500 employees of TEMIC (also TSEU members) for serious illegal detention and physical injuries. They alleged in their complaints that during the strike over 200 TEMIC supervisors had been violently prevented from leaving company premises by striking TSEU members. According to the complainant, these complaints were baseless and were filed by the TEMIC supervisors so as to effect a mass lay-off through the exclusionary clause of the Order of 27 October 1995.

665. The Committee notes that the Government does not refute the allegation that the complaints filed by the two TEMIC supervisors against union members on 8 and 22 November 1995, respectively, were unfounded. On the contrary, it is the Committee's understanding that the Government was of the same view too since on 24 November 1995, the Acting Secretary issued an Order which affirmed the Order of 27 October 1995 and issued another Order on 7 December 1995 clarifying that the exclusionary clause contained in the Order of 27 October 1995 covered only those with pending criminal charges as of the issuance of the 27 October 1995 Order and not those against whom charges had been filed subsequently by TEMIC supervisors. The Committee further notes that Labor Secretary Quisumbing issued: (i) a Writ of Execution on 27 June 1996 holding that the Orders of 27 October and 24 November 1995 "have long become final and executory"; (ii) an Order on 17 October 1996 denying the company's motion to quash the Writ of Execution, ruling that the 27 October and 24 November 1995 Orders were "explicit and free of any ambiguity". The Labor Secretary then directed the issuance of an Alias Writ of Execution for the actual physical reinstatement of the affected workers; (iii) an Order on 21 November 1996 affirming his 17 October 1996 Order for the issuance of an Alias Writ of Execution and holding that complaints filed with the police could not be considered as the "criminal charges" mentioned in the 27 October 1995 Order.

666. The Committee notes with serious concern that in spite of the issuance of the above Orders, first by the Acting Labor Secretary and then by the Labor Secretary himself, TEMIC refused to comply with the Orders ordering the reinstatement of the approximately 1,500 union members who went on strike except the union officers, shop stewards and those with pending criminal charges. On the contrary, the Committee notes that TEMIC supervisors had recourse to various delaying tactics including the pressing of charges of illegal detention and physical injuries against the dismissed employees of TEMIC. These charges, which were filed after the issuance of the first Order for Reinstatement of 27 October 1995, were in any event subsequently found to be groundless by the Labor Secretary himself.

667. Thus, there is no doubt in the Committee's mind that the 1,500 or so TSEU members were dismissed and not reinstated subsequently for having participated in strike action. Furthermore, the Committee regrets to note that the Government merely indicates that its Department of Labor and Employment (DOLE) sent its Sheriffs on three different occasions to enforce the Orders for Reinstatement (8 July, 3 and 4 December 1996) but that they were unable to do so because of TEMIC's refusal to comply with the same. The Committee deplores the Government's utter inability to enforce the DOLE's Orders for Reinstatement. In this respect, the Committee reminds the Government that it is responsible for preventing all acts of anti-union discrimination and that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders and members dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 749].

668. In view of the principles enunciated above and of the fact that over two years have elapsed since the first Order for Reinstatement was issued, the Committee would urge the Government to ensure that the 1,500 or so TSEU leaders and members who were dismissed further to their participation in strike action are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the DOLE's Orders for Reinstatement. The Committee requests the Government to keep it informed of any developments in this regard. The Committee further notes that the TSEU and TEMIC filed petitions with the Supreme Court which has consolidated the two petitions in a resolution dated 13 January 1997. The Committee requests the Government to keep it informed of the outcome of the Supreme Court's decision on this case.

669. Turning to the allegation that five TSEU members were detained on 23 September 1995 at blocks 1 and 2 of the Taguig police station and later at the Taguig Municipal Jail, the Committee deeply regrets that the Government has not provided its observations in this respect and asks it to do so. While noting that the five union members were released on 26 September 1995, the Committee draws the Government's attention to the principle that the detention, even if only briefly, of trade unionists on the grounds of trade union activities constitutes a serious obstacle to the exercise of trade union rights and an infringement of freedom of association [see Digest, op. cit., paras. 70 and 75]. Similarly, the Committee regrets to note that the Government has not replied to the allegation that on 20 October 1995, during a union meeting at the picket line, company security guards and hired goons sprayed tear-gas and water at the strikers who were also stoned, and that on 21 October 1995 the union's picket line was ransacked by company security guards assisted by Taguig policemen. In this respect, the Committee must emphasize that in cases of strike movements, the authorities should resort to the use of force only in situations where law and order is seriously threatened [see Digest, op. cit., para. 580]. Noting that the union requested the Philippine National Police to investigate the incident and to take appropriate action against the Taguig policemen involved, the Committee requests the Government to keep it informed of the outcome of this investigation.

670. As regards the allegation that TSEU members were violently dispersed by the Philippine National Police from the office premises of the Secretary of Labor and Employment on 30 December 1996 and that many of them were injured, the Committee notes the Government's statement that this eviction was carried out pursuant to section 4 of the "Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Redress of Grievances and for other Purposes". In this respect, the Committee would recall that while trade unions must conform to the general provisions applicable to all public meetings and must respect the reasonable limits which may be fixed by the authorities to avoid disturbances in public places, 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., paras. 141 and 137].

The Committee's recommendations

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

(a) The Committee urges the Government to ensure that the 1,500 or so leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who were dismissed further to their participation in strike action from 14 to 16 September 1995 are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the Orders for Reinstatement issued by the Government's Department of Labor and Employment (DOLE). The Committee requests the Government to keep it informed of any developments in this regard.

(b) Noting that the Supreme Court has consolidated the two petitions filed by the union and the company in a resolution dated 13 January 1997, the Committee requests the Government to keep it informed of the outcome of the Court's decision on this case.

(c) The Committee requests the Government to provide its observations on the allegation that five TSEU members were detained on 23 September 1995 at the Taguig police station and later at the Taguig Municipal Jail.

(d) The Committee further requests the Government to keep it informed of the outcome of the investigation by the Philippine National Police into acts of violence allegedly carried out by Taguig policemen against TSEU members who were picketing on 20 and 21 October 1995.

 Case No. 1895
Report in which the Committee requests
to be kept informed of developments

Complaint against the Government of Venezuela
presented by
the Single Grass-roots Union of Workers of the Department of Education (SUBATRA)

Allegations: Detention and eventual trial of a trade union
officer as a reprisal for trade union activities

672. The complaint is contained in a communication from the Single Grass-roots Union of Workers of the Department of Education (SUBATRA), dated 18 July 1996. The Government replied in a communication dated 30 September 1997.

673. 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. The complainant's allegations

674. In its communication dated 18 July 1996, the Single Grass-roots Union of Workers of the Department of Education (SUBATRA) alleges the arbitrary detention of Mr. José Ramón Pacheco, President of SUBATRA, on 16 July 1996, and his being placed in the custody of the Technical Corps of the Judicial Police for having allegedly provided or issued irregular documentation (academic reports or certificates) with alteration of signatures to an individual who had applied to enter the police force of Sucre Municipality, the same individual who attributed these acts (falsification of documents) to the President of SUBATRA. The Technical Corps of the Judicial Police carried out an investigation in this connection, summoned the President of SUBATRA, detained him, and transmitted the corresponding legal case to the legal authorities on 17 July 1996.

675. The complainant explains that the police force of Sucre Municipality is hierarchically subordinate to the Mayor of the said municipality, from whom it receives direct instructions, and that it is precisely this police corps that played a decisive role in the submission and investigation of the "evidence" which seeks to implicate the President of SUBATRA as responsible for the falsification of documents. The complainant adds that the Mayor of Sucre Municipality is also the employer of the teachers, and that there are serious grounds for conjecturing that his intervention was decisive in the detention of the President of SUBATRA. In this connection, the organization refers to the anti-union attitude and to conflicts between the Mayor's Office of Sucre Municipality and SUBATRA from 1995 until the date of the detention of the President of this organization, which included strikes, demonstrations and public meetings.

B. The Government's reply

676. In its communication dated 30 September 1997, the Government states that in this case there does not appear to be a violation of the exercise of freedom of association -- or of any of its essential tenets -- through a supposedly arbitrary detention. Firstly, the acts noted by the complainant assume the complicity and arbitrary approach of three discrete and independent bodies which discharged certain duties in the prosecution of a person suspected of having committed criminal acts (local preventive police, investigative police attached to the criminal justice service, and the criminal justice courts).

677. Specifically, the Government states that even according to the complainant union (SUBATRA), Mr. José Ramón Pacheco was detained by the local police of Sucre Municipality (police force with authority limited to the district of Sucre in the State of Miranda) and placed in the custody of the Technical Corps of the Judicial Police, this latter being the investigative police body with national authority, appointed to the Ministry of Justice. Likewise, his case was sent to the criminal justice courts, since there was evidence which implicated him in offences related to forging or falsification of documents (all of the above happened between 16 and 17 July 1996, according to SUBATRA).

678. As can be seen, both the police investigative body and the entity with jurisdiction for criminal prosecution act under the auspices of the national public power, the first within the national executive and the second within the judiciary; while the Mayor's Office of Sucre Municipality, and its police force, act only at the municipal level. Thus, in the national political system, it is sought, through the "constitutional separation of powers" (legislative, judicial and executive) and their "territorial levels of organization" (national, state and municipal), to guarantee the independence and autonomy of the separate branches which make up the State. This situation affects all the bodies, including those which, as in the case at hand, act in a situation where there is the suspicion of a violation of national legislation through the commission of a punishable act.

679. The Government points out that according to legislation in force in the country, the procedure to follow in such cases -- as SUBATRA pointed out -- consists in carrying out the preventive detention of the implicated suspect, according to section 75(H) of the Institution of Criminal Proceedings Code, in order that, in a previously determined time period -- eight days -- the court appointed to the case can pronounce on the detention order (judicial order for detention), or the release of the suspect if it is considered that there is not sufficient evidence to justify the continued detention of the individual. It is worth saying that Venezuelan legislation is very closely linked to the principles of the guarantee of due process and of the rights to defence, since the individual can only be held in preventive detention for eight days (a period which it is deemed reasonable to consider as not constituting any kind of infringement prejudicial to personal freedom), to be subsequently remanded to the custody of the body with the appropriate jurisdiction, which will determine the existence of the legal grounds for the institution of legal proceedings against the suspect implicated in a punishable act.

680. On the other hand, the Government clarifies that any citizen has adequate guarantees established by domestic legislation to bring into play the machinery of the bodies for protection with jurisdiction in cases where arbitrary acts could be committed, guarantees on which Mr. José Ramón Pacheco, like any other inhabitant of the country, can count. To this effect, since constitutional rights are in question: personal freedom (article 61 of the Constitution of the Republic of Venezuela) and freedom of association (article 91), the appropriate thing to do would be the exercise of a common appeal, which is granted by the Institution of Criminal Proceedings Code, or the quicker and more efficient means of a suit for habeas corpus, provided for in the constitutional appeal law on constitutional rights and guarantees, with the aim of immediately re-establishing the legal situation which has been infringed.

681. In the case in question, the above-mentioned police forces limited themselves solely to acting on the basis of the legal framework which confers their authority; for this reason it is difficult to sustain the view that the principle contained in Article 3 of Convention No. 87, or any other norm in force in the Republic, has been transgressed in any way. The exercise of trade union activities can never imply that a person cannot be prosecuted when found accused of an act which may be punishable. Mr. José Ramón Pacheco was detained because another citizen indicated him as the person who had provided him with a forged or falsified public document in exchange for money. The Technical Corps of the Judicial Police, having been acquainted with this indication, and once the tests had been carried out which determined the falsity of the document which originated from the administrative section in which Mr. Pacheco worked, proceeded with his detention in order to immediately put him in the custody of the criminal justice courts. The correctness of the procedure which was followed is thus evident; nevertheless, if Mr. Pacheco had not committed any offence, there would have been no grounds for continuing his criminal prosecution, and like any individual he would have been immediately released, a responsibility which devolves to the judiciary. To this effect, the information which is available on this case indicates that Mr. Pacheco was released -- in this way the exercise of his union functions was not impaired -- and that a judicial investigation stage is still under way, since there is evidence that an offence was committed.

C. The Committee's conclusions

682. The Committee observes that the complainant teaching organization alleges the arbitrary detention of Mr. José Ramón Pacheco, President of SUBATRA, and points out that the police corps which played a decisive role in the submission and investigation of the "evidence" for presumed falsification of academic documents by Mr. Pacheco, is hierarchically subordinate to the Mayor of Sucre Municipality, employer of the teachers. According to the allegations, the said detention constituted a reprisal for the union activities of the President of SUBATRA. The Committee observes that the Government has emphasized the legality and correctness of the procedures and the methods adopted in connection with Mr. José Ramón Pacheco and pointed out that this union officer was released, that the exercise of his union functions was not impaired, and that the case is in the investigation stage since evidence does exist that an offence was committed (forging or falsification of documents). The Committee takes note that the Government denies the alleged complicity between separate bodies against Mr. José Ramón Pacheco and points out in this connection that such bodies act in separate spheres (national, state and municipal) precisely in order to guarantee their independence and autonomy.

683. In these circumstances, in order to be able to make a definitive pronouncement on this issue, the Committee requests the Government to keep it informed of the result of the criminal proceedings against the union officer Mr. José Ramón Pacheco for suspected falsification of documents.

The Committee's recommendation

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

The Committee requests the Government to keep it informed of the result of the criminal proceedings against the union officer Mr. José Ramón Pacheco for suspected falsification of documents.

Case No. 1902
Definitive report

Complaint against the Government of Venezuela
presented by
the Trade Union of Professional Fire-Fighters and Allied Workers of
the Federal District and the State of Miranda (SINPROBOM)

Allegations: Denial of fire-fighters' right to organize and
to bargain collectively

685. The complaint is contained in a communication of the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) dated 4 September 1996. The organization sent additional information in a communication dated 27 January 1997.

686. The Government sent its observations in a communication dated 30 September 1997.

687. 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. The complainant's allegations

688. In its communications dated 4 September 1996 and 27 January 1997, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) alleged that in the last two years the Venezuelan authorities have enacted a series of legislative provisions that have the effect of denying fire-fighters the right to organize:

689. The complainant adds that on 20 September 1996 the Sectoral Director-General of the Ministry of Labour sent a circular to all the labour inspectors concerning the legalization of trade unions of public servants, which stated that: "Inspectors must declare themselves incompetent to legalize trade unions of fire brigades pursuant to section 20 of the Act respecting the exercise of the occupation of fire-fighter, in conformity with section 7 of the Organic Labour Act, in as much as since members of the armed forces and national defence and security forces shall not be included in the scope of the Organic Labour Act" (section 7 of the latter Act provides that its provisions shall not cover members of services "responsible for the defence and security of the nation and for the maintenance of public order"). According to the complainant, the intention of this circular is to oblige labour inspectors throughout the country to adopt its official interpretation of the right of fire-fighters to organize, deliberately refusing to issue the certificates of registration of the organizations that the workers in this category choose to form.

690. The complainant alleges further that the Autonomous Municipality of Chacao requested the Office of the Legal Adviser of the Ministry of Labour to issue an opinion on fire-fighters' right to freedom of association; the request classifies the occupation of fire-fighter as a security and defence service and considers that they are excluded from the scope of the Organic Labour Act, citing section 7 of the Act. The complainant points out that according to the request for an opinion, in December 1994 the Ministry of Labour recognized the trade union of the Eastern Fire Brigade Association. However, according to the request, pursuant to the new legislation (the Act respecting the exercise of the occupation of fire-fighter), the legality of the above-mentioned trade union should be clarified and steps taken, if appropriate, to cancel its registration with the Ministry of Labour. This is evidence of the Autonomous Municipality of Chacao's firm intention to initiate a legal procedure aimed at dissolving SINPROBOM by administrative authority. Following this request, the Autonomous Municipality of Chacao requested the labour inspectorate of the eastern district of the metropolitan area to suspend conciliation meetings on a list of demands presented by SINPROBOM in June 1996. The complainant points out that this runs counter to Article 4 of Convention No. 98.

B. The Government's reply

691. In its communication dated 30 September 1997, the Government states, with regard to the allegations concerning Decree No. 77 of the Governor of the State of Miranda that it was true that while the Constitution of the Republic provides that certain rights and guarantees shall be regulated through legislative activity, no other authority may adopt lower ranking legal provisions which encroach on or limit the exercise of constitutional rights. As pointed out by the SINPROBOM, the Governor of the State of Miranda acted unilaterally and hence without the involvement of the national Government; moreover, it had acted unconstitutionally, any person concerned in possession of the rights and right of action conferred on him or her by the internal legal system may request the Supreme Court of Justice to declare the above-mentioned Decree null and void. For this reason, the Government considers that if the complainant's arguments are well founded, there are sufficient legal guarantees laid down to redress the alleged violation committed by the Governor of the State of Miranda by initiating proceedings to declare it null and void on grounds of unconstitutionality. For the same reasons, in their prima facie examination of constitutionality, the labour courts may rule that the above-mentioned Decree does not apply in a given case (known as the "control difuso" system of supervision of constitutionality).

692. With regard to Decree No. 572 of the President of the Republic, in reply to the allegations the Government states that the alleged violation of freedom of association is only apparent, since the exclusion of only airborne fire-fighters could affect only one part of the exercise of the fire-fighting occupation which involves the performance of a vital service (tasks relating to air traffic control), not the occupation as a whole. In other words, since air traffic control is a service affecting the life and safety of the population, restriction of the exercise of the right to organize in the aviation sector could not be interpreted as a violation of the SINPROBOM's right to freedom of association, since its members do not even work in the airborne service.

693. As regard the allegations concerning the Act respecting the exercise of the occupation of fire-fighter, the Government recalls that based on the provisions of the Act, which classifies fire brigades as security bodies, and in conformity with section 7 of the Organic Labour Act, the Venezuelan public authorities allegedly argued that fire-fighters should be excluded from the scope of the Organic Labour Act and therefore should not enjoy the right to freedom of association; according to the complainant, these opinions might result in specific acts of this category of workers or public servants which would be prejudicial to fire-fighters' right of freedom of association.

694. In this respect, the Government points out that the complainant uses the term "might", which implies something that could potentially occur in the future, and until now the labour administration has recognized SINPROBOM's freedom of association, since this organization exists legally (it has been formally registered by the Ministry of Labour); its capacity to negotiate collective agreements (registered with the Ministry of Labour) and to handle lists of demands has been recognized; the protection afforded by law in the form of what is known as trade union immunity has been recognized (the Ministry of Labour has instituted proceedings for reinstatement and payment of unpaid wages), etc. None the less, the Government explains that at the initiative of the fire-fighters' union itself a Bill was submitted to the Congress of the Republic which, once it had been approved by both houses of the legislature and entered into force (27 May 1996), provided that fire brigades are considered as security bodies, which introduced the possibility of interpreting the law as meaning that fire brigades are excluded from the scope of the Organic Labour Act (section 7).

695. As regards the allegations concerning the Autonomous Municipality of Chacao, the Government states that the complainant has merely expressed opinions and value judgements that do not correspond to reality. Specifically, the request to cancel the trade union registration of SINPROBOM was rejected by the office of the Ministry of Labour from which it was requested, since it would mean the administrative dissolution of the trade union, which is prohibited by Convention No. 87.

696. The Government concludes by pointing out that notwithstanding the above, the Ministry of Labour has begun talks with the officers of SINPROBOM with a view to clarifying the content of their arguments and seeking a concerted solution to the problem that has arisen.

C. The Committee's conclusions

697. The Committee notes that, in this case, the complainant alleges that, in considering fire-fighters as members of security staff, the legislation excludes this category of public workers from the scope of application of the Organic Labour Act and thus from the right to organize and to bargain collectively. More precisely, the complainant alleges that the municipality of Chacao requested the Labour Minister to clarify the legal nature of the fire-fighters' union. For the complainant, this proves that the municipality in question has the intention of requesting the union's dissolution.

698. The Committee notes that the Government in its reply states that up to the present time, the organization enjoys legal personality and has had its capacity to carry out collective bargaining recognized. Moreover, the Government indicated that the authorities have refused to annul the union registration of the complainant.

699. While noting these indications, the Committee would nevertheless point out that the complainant has expressed its fear that the Act of 1996 respecting the exercise of the occupation of fire-fighter will be interpreted in a way which would deprive fire-fighters of their right to organize and to bargain collectively, rights which they currently enjoy, at least in practice.

700. The Committee points out that it is not for it to determine which labour legislation applies to the different categories of workers and public servants or, more specifically, whether or not certain categories of workers should be governed by special regulations or statues. Whatever the solution chosen, it is, however, for the Committee to ensure that the workers covered by Conventions Nos. 87 and 98 enjoy the rights laid down in these Conventions.

701. The Committee accordingly recalls that under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), "all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" [see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 4th edition, 1996, para. 206]. More precisely as concerns fire-fighters, the Committee of Experts on the Application of Conventions and Recommendations has considered that the functions exercised by this category of public servants should not justify their exclusion from the right to organize [see Freedom of Association and Collective Bargaining, 1994, para. 56].

702. As concerns the right to bargain collectively, the Committee points out that "all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service" [see Digest, op. cit., para. 793].

703. On the other hand, it is clear to the Committee that fire-fighters constitute an essential service in the strict sense of the term and therefore the right to strike can be prohibited for these workers. In the present case, the workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests. For example, prohibition of the right of lock-out, provision of joint conciliation procedures, and only where conciliation fails, the provision of joint arbitration machinery. [See Digest, op. cit., para. 551.]

704. Taking into account all of these elements, the Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the recognition of the right to organize and to bargain collectively of fire-fighters, it being understood that the right to strike can be prohibited for these workers. The Committee therefore firmly hopes that no trade union of fire-fighters will be dissolved.

The Committee's recommendations

705. 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 all necessary measures to guarantee the maintenance in law and in practice of the right to organize and to bargain collectively of fire-fighters, it being understood that the right to strike can be prohibited for these workers. In this case, the workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests.

(b) The Committee expresses the firm hope that no trade union of fire-fighters will be dissolved.

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

 

Geneva, 14 November 1997.

(Signed) Max Rood,
Chairman.

Points for decision:
 

      Paragraph 138;  
      Paragraph 194;  
      Paragraph 206;  
      Paragraph 224;
      Paragraph 240;
      Paragraph 257;
      Paragraph 272;
      Paragraph 326;
      Paragraph 347;
      Paragraph 362;
      Paragraph 394;
      Paragraph 403;
      Paragraph 450;

    Paragraph 480;
    Paragraph 500;
    Paragraph 525;
    Paragraph 540;
    Paragraph 555;
    Paragraph 576;
    Paragraph 596;
    Paragraph 609;
    Paragraph 634;
    Paragraph 671;
    Paragraph 684;
    Paragraph 705;

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

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