GB.274/8/1 - Governing Body

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 4, 5 and 17 March 1999, under the chairmanship of Professor Max Rood.

2. The members of Argentine, British, Mexican and Panamanian nationality were not present during the examination of the cases relating to Argentina (Case No. 1947), the United Kingdom/Bermuda (Case No. 1959), Mexico (Case No. 1927) and Panama (Case No. 1967).

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3. Currently, there are 77 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 21 cases on the merits, reaching definitive conclusions in 13 cases and interim conclusions in eight cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1995 (Cameroon), 1997 (Brazil), 1998 (Bangladesh), 1999 (Canada/Saskatchewan), 2001 (Ukraine), 2003 (Peru), 2004 (Peru), 2005 (Central African Republic), 2006 (Pakistan), 2007 (Bolivia), 2008 (Guatemala), 2009 (Mauritius), 2010 (Ecuador), 2011 (Estonia) and 2012 (Russian Federation) because it is awaiting information and observations from the governments concerned. All these cases relate to complaints or representations 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. 1851 (Djibouti), 1922 (Djibouti), 1961 (Cuba), 1974 (Mexico), 1976 (Zambia), 1978 (Gabon), 1980 (Luxembourg), 1990 (Mexico), 1991 (Japan) and 1993 (Venezuela). In Cases Nos. 1974 and 1990 (Mexico), the Government has stated that its observations will be sent in the near future. In Case No. 1931 (Panama), the Government has requested the technical assistance of the Office. The Committee requests it to provide a response to the issues raised in the case so that the technical assistance requested can be based on the definitive conclusions and recommendations of the Committee.

Observations requested from complainants

6. In Case No. 1929 (France/French Guiana) the Committee has still not received the complainant's comments. Taking into consideration the considerable amount of time which has elapsed since it formulated its request, the Committee decides to close this case.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1865 (Republic of Korea), 1953 (Argentina), 1965 (Panama) and 1986 (Venezuela), the governments have sent partial information on the allegations made. The Committee requests all of these governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1773 (Indonesia), 1888 (Ethiopia), 1930 (China), 1934 (Cambodia), 1943 (Canada/Ontario), 1949 (Bahrain), 1951 (Canada/Ontario), 1960 (Guatemala), 1970 (Guatemala), 1971 (Denmark), 1972 (Poland), 1975 (Canada/Ontario), 1979 (Peru), 1984 (Costa Rica), 1985 (Canada), 1989 (Bulgaria), 1992 (Brazil), 1994 (Senegal), 1996 (Uganda), 2000 (Morocco) and 2002 (Chile) the Committee has very recently received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1939 (Argentina), 1963 (Australia) and 1988 (Comoros), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the cases, it has not received the observations of the governments concerned or has only received partial observations. The Committee draws the attention of the governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases even if their complete observations or information have not been received in due time. The Committee accordingly requests these governments to transmit their observations or information as a matter of urgency.

Irreceivable complaint

10. On 26 November 1998 and 19 January 1999, the trade union New Wood addressed to the Chairman of the Committee communications in which it alleged infringements of trade union rights by the United Nations in Geneva. According to its procedure, the Committee can only examine complaints presented against a State. In these circumstances, the Committee is obliged to conclude that the communications in question are irreceivable and therefore is not in a position to examine the substance.

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Transmission of cases to the Committee of Experts

11. 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: Colombia (Case No. 1916), Nigeria (Cases Nos. 1793 and 1935), Panama (Case No. 1967), Peru (Case No. 1906), Turkey (Case No. 1981).

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

Case No. 1867 (Argentina)

12. The Committee examined this case at its June 1998 meeting [see 310th Report, paras. 68 to 89] and requested the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post, and if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

13. In a communication of 22 October 1998, the Government stated that it has undertaken the required formalities by notifying the Province of Salta of the recommendation formulated by the Committee.

14. In a communication of October 1998, the State Workers' Association (ATE) notes that having learned of the Committee's recommendation, Mr. Miguel Hugo Rojo presented a photocopy to the Administrative Court of First Instance of the city of Salta, in the Province of Salta, of the Republic of Argentina. In this administrative action which is actually at the evidentiary stage, the Province of Salta, through its legal representative, denied or refused to recognize the existence of the Committee's recommendations, and asked to have the document removed from the file. According to the complainant, this indicates that the Province of Salta refuses to recognize the recommendations of the Committee, the proof being that to date, Miguel Hugo Rojo has not been reinstated in his post, nor has he been paid the salary owing.

15. The Committee takes note of this information. The Committee deeply regrets that Mr. Rojo has not yet been reinstated in his former post nor has he been compensated fully. Under the circumstances, the Committee reiterates its former recommendation and again requests the Government to take the necessary steps immediately to implement the recommendation adopted in June 1998.

Case No. 1873 (Barbados)

16. The Committee last examined this case at its November 1998 meeting [see 311th Report, paras. 97-110]. The Committee had requested the Government to proceed to an objective verification as to whether the National Union of Public Sector Workers (NUPW) represented the majority of the workers in the public sector in Barbados and to send it the result of this verification.

17. In a communication dated 4 January 1999, the Government confirms that the NUPW is in fact the largest trade union which represents public servants in Barbados. However, as far as representativity is concerned, the Government indicates that the NUPW has a smaller membership than the other public sector unions which are represented by the Congress of Trade Unions and Staff Associations of Barbados (CTUSAB). The Government indicates that while CTUSAB is not an accredited trade union but rather an umbrella body, it nonetheless conducts negotiations on behalf of its affiliate members such as teachers, the Barbados Workers' Union (BWU) and nurses, as well as the "uniformed and disciplined services" which includes police, prisons and fire officers. Thus, the Government explains that the CTUSAB is more representative of the public servants than the NUPW and it is through this representation that the Government concluded its settlement on the new wage plan after bargaining in good faith. The Committee takes due note of this information.

Case No. 1509 (Brazil)

18. The Committee examined this case which concerns the murder of the trade union leader Valdicio Barbosa dos Santos at its meeting of November 1998 [see 311th Report, para. 21] and requested the Government to keep it informed of the final result of the legal proceedings concerning this case. In a communication of 25 January 1999, the Government states that the legal proceedings in question are still pending before the tribunal of the State of Espiritu Santo (in appeal from the criminal court) following an appeal lodged by the accused Mr. Romualdo Eustaquio Luz Faria. Furthermore, the Government indicates that the other accused, Mr. Gilberto Marcal da Rocha has not yet been located, which explains why the sentence has not been served to him. The Committee takes note of this information and requests the Government to keep it informed of the final result of the legal proceedings.

Case No. 1916 (Colombia)

19. In its previous examination of this case, the Committee urged the Government to take all the necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for organizing a strike in 1993 at the "Medellín Municipal Enterprises" (in the refuse collection sector) and, if this was not possible, to ensure that they received full compensation. The Committee also requested the Government to ensure that in future any declaration on the legal status of strikes (declaration of illegality) would be made by an independent body and not by the administrative authority, and to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term [see the 309th Report of the Committee, para. 105].

20. In its communications of 10 December 1998 and 15 January 1999, the Government provided a copy of a ruling given on 9 March 1998 by the Supreme Court of Justice stating that in June 1993 the majority of the workers had returned to work, while the four complainants continued their stoppage after it had been declared illegal and compensation for wrongful dismissal is therefore inappropriate. The Government adds that, once judicial decisions are handed down, the Government of Colombia, or of any other State based on the rule of law, has no choice but to comply, in view of the separation of powers. The workers now appealing to this international body availed themselves of all the available means of pursuing their claims. Although the judicial decisions which they obtained were not in their favour, they constitute a matter adjudged and must be respected by all.

21. At the same time, the Government points out that the case concerns a work stoppage, which is legally and constitutionally a different concept from that of a strike. This was expressly indicated by the persons responsible for formulating the complaint, who stated that at their General Assembly of 7 February 1993 they agreed to declare themselves "in permanent session", i.e. they never voted for strike action. It should be emphasized that the workers at no time voted for a strike but employed the union's own concept of a "permanent assembly", which in practice means an illegal stoppage and which affected refuse collection in the country's second largest city. Section 56 of the Political Constitution of Colombia guarantees the right to strike except in essential public services. The legislators developed this constitutional principle and specified those activities regarded as constituting essential public services in order to safeguard in full the right to strike in those occupations which by nature are not essential. Although currently there are laws which expressly define essential public services (for example, Act No. 142 of 1994 concerning public services for households, including sanitation), at the time when Resolution No. 00414 of 18 February 1993 was adopted, the principles embodied in it were already applied, although the relevant provisions of the 1991 Political Constitution had not been developed, and are becoming well established in law. This was the ruling given by the Council of State on 26 October 1994.

22. The Government states that, given the existence of judicial review of the administrative procedure for declaring a strike illegal (see (e)) within which a decision is given by the highest administrative court, the Council of State, and must be respected by the parties involved and by the Government, the following considerations should be borne in mind: the procedure for a declaration of illegality is not arbitrary. It comprises the following: (a) the only authority competent to register a stoppage or strike is the labour inspector who reports on the facts observed at the workplace and invites representatives of the employer and of the workers to put their respective cases in the administrative proceedings. The absence of any wish on the part of the parties to defend their claims is not a reason for halting the administrative proceedings; (b) the assessment of the facts is the responsibility of the Technical Sub-Directorate for Collective Affairs which draws up a draft resolution for signature by the Minister; (c) the decision is the sole responsibility of the Minister, after the case has been examined by the Legal Office (Advisory Office of Settlement); (d) the administrative decision is reconsidered; (e) the administrative decision of the Minister declaring the strike or stoppage illegal can be contested before the judicial authority. This system of supervision protects the interested parties from possible abuses of power by the Minister and from the possible illegality of the Minister's decision, and has the same effect in the Colombian justice system as would be had by the suggestion of the Committee on Freedom of Association that such decisions are a matter for judges rather than the administrative authorities. The solution provided by the national legal system takes into consideration the need for flexible decisions which will implement cogent instruments capable of deterring violations with a view to ensuring that a group of workers acting in violation of the law ceases to do so; this is a task for the administrative authorities, although it must be possible to contest their decisions from the legal point of view, and for this purpose workers have available to them the possibility of legal action.

23. The Government indicates that once a stoppage has been declared illegal, the employer is entitled to dismiss the workers involved, taking into account their degree of involvement. The employer's decision can be contested before labour courts which can order the reinstatement of a worker who has been unjustly or illegally dismissed.

24. As regards the definition of essential public services, in which according to the Colombian Constitution strikes are prohibited (section 56), the Government does not share the concern of the Committee on Freedom of Association with regard to the "wide range of services" in which strikes are restricted. Under national law, essential public services are those that have been expressly defined as such by the legislators and, whenever the term essential is applied, the Constitutional Court can review a legislative decision with a view to ascertaining whether or not the activity in question is really an essential public service (Ruling C-472 of 27 October 1994). According to the Ruling in question, a given public service may be deemed to be essential if it contributes directly to the protection of property or the fulfilment of needs or the expression of values connected with the respect, safeguarding, exercise and effectiveness of fundamental rights and freedoms. The criterion of the Constitutional Court is the same as that used by the Committee of Experts in its 1983 General Survey (paragraphs 213 and 214), namely, that only those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population" can be considered essential.

25. The activities which the legislators have defined as essential public services have arisen in response to the particular conditions prevailing in Colombia; there is not, as was suggested, any discretionary element in their definition. In those cases where, because of the essential nature of the public services in question, strikes are prohibited under the Constitution, provision is made, as a compensatory guarantee, for arbitration to resolve disputes. It follows that national legislation is in conformity with the interpretations of the Committee of Experts with regard to the rights of association and negotiation embodied in ILO Conventions Nos. 87 and 98.

26. The Committee notes that the Supreme Court of Justice did not order reinstatement or compensation for wrongful dismissal in the case of the four complainants who had taken part in and continued a work stoppage (the subject of the complaint in Case No. 1916) which had been declared illegal. The Committee observes that the decision of the Supreme Court of Justice is based on legislation currently in force, which empowers the Minister of Labour to declare a strike or work stoppage illegal, and that the declaration of illegality of the strike in the present case is based on the prohibition of strikes in the public services and specifically in hygiene and sanitation services (section 430 of the Labour Code). In this regard, the Committee observes that, according to the documents available to it, the stoppage began on 7 February 1993 and was declared illegal on 18 February and therefore does not rule out the possibility that the interruption in the refuse collection service for 11 days might have endangered the health of the population, and that this might have given rise to certain sanctions. However, although, as the Government states, the stoppage considered in the present case did not follow a strike vote, the Committee recalls that responsibility for declaring the strike (or stoppage) illegal should not lie with the Government but with an independent body which has the confidence of the parties involved [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 522], and that the legislation prohibits strikes in a very wide range of services which are not necessarily essential [see the 309th Report of the Committee, para. 101]. This being the case, the Committee draws these legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, which for many years has criticized the provisions of legislation which prohibit strikes in certain non-essential services.

Case No. 1925 (Colombia)

27. At its March 1998 meeting, the Committee formulated the following recommendations concerning the allegations that are still pending [see 309th Report, para. 119]:

(a) The Committee requests the Government to transmit the decision concerning the fine imposed upon the company Avianca-Sam-Helicol for having applied a status of "not unionized" to the workers and to confirm that this type of anti-union discrimination practice has ceased. It further requests the Government to keep it informed of the investigations into violations of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.

(b) As regards the dismissal of trade union officers from the union's subsidiary office at Cundinamarca (Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members from the operations area at Eldorado Airport in Bogotá, the Committee requests the Government to take all steps forthwith to begin an investigation into the matter and, if it is found that the union officers and members in question were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of this investigation.

(c) As regards the failure after 15 December 1996 to deduct trade union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that non-payment of union dues can result in serious financial difficulties for trade union organizations and requests the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the substantive Labour Code. The Committee requests the Government to keep it informed in this connection.

(d) As regards the allegations concerning the suspension of a permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with a collective agreement, and the withdrawal on 7 November 1995 of recognition as SINTRAVA representatives from members of the union's National Council, the Committee requests the Government to take steps to ensure that an investigation is conducted into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.

28. In its communication of 15 January 1999, the Government forwarded its observations concerning these matters. The enterprise AVIANCA also forwarded information. In this respect, since AVIANCA is not the complainant in the present case, the Office asked the Government if it would like the information provided by AVIANCA to be considered as part of the Government's reply to the Committee. Under these circumstances, the Committee will adjourn its examination of the case until it receives the Government's response.

Case No. 1954 (Côte d'Ivoire)

29. During its last examination of the case at its session of November 1998, the Committee had requested the Government to take the necessary measures to ensure the reinstatement in their posts of 300 workers and 14 staff delegates from the Abidjan Ship Repair and Industrial Work Enterprise (CARENA) following strike movements started in March 1997; as regards the industrial dispute at the CARENA enterprise, the Committee had also requested the Government to resume negotiations on this matter and to keep it informed of decisions taken by the industrial advisory board made up of workers and employers involved in this industrial dispute under the supervision of experts from the Ministry of Employment [see 311th Report, para. 411(a) and (d)]. Finally, the Committee had requested the Government to undertake inquiries regarding the various interventions by the police against the strikers who had participated in the strike movements of March 1997 and with regard to the attack on and occupation of Dignité's premises for a number of days in February 1998 [see 311th Report, para. 411(b) and (c)].

30. In a communication dated 5 February 1999, the Government reiterates its previous comments on the events of March 1997 according to which Dignité staged an illegal strike, thus violating the agreement which the parties had reached, as well as violating the Labour Code and Decree No. 96-208 of 7 March 1996 on the conciliation procedure in the case of collective labour disputes. The Government declares that the Minister of Employment was right in declaring illegal the strike of 5 March 1997; in this context and taking into consideration the separation of power, the Government indicates that it cannot interfere to obtain the reinstatement of the workers dismissed following the strikes. In any case, the Government recalls that the workers in question can lodge a complaint with the competent national tribunals in order to have their rights reinstated. While taking note of this information, the Committee can only recall that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties [see 311th Report, para. 405]; in this case, the declaration of the strike as illegal having been used by the employer to dismiss in an abusive way a considerable number of workers, the Committee deplores this violation of freedom of association and urges once again the Government to take all necessary measures in order to reinstate in their posts, if they so wish, all workers and staff delegates who were victims of anti-union discrimination. In addition, it requests the Government to resume negotiations with regard to the industrial dispute at the CARENA enterprise and to keep it informed of the decisions taken by the industrial advisory board which was set up in this context.

31. As regards the various interventions by the police, the Government states once again that they were totally justified since they were dealing with matters of a very serious nature where public order could have been threatened; in this respect, the Government declares that as far as the events of March 1997 are concerned, not only had the workers used strike picketing to obstruct public streets but they had also threatened the installations of the enterprise and particularly the ships under construction. Concerning the protest march of 4 February 1998, the Government declares that Dignité never obtained the prior authorization from the Ministry of the Interior, in violation of Act No. 92-464 on the repression of certain forms of violence; this led to the intervention of national police units in order to prevent matters getting out of hand and disturbing public order. While taking note of this information, the Committee deplores the fact that the Government provides no new information and thus can only reiterate its previous conclusions according to which the use of police forces constituted an infringement of the trade union rights of the workers concerned. Finally, the Committee takes note of the fact that the Government paid an amount of 100 million francs CFA to the trade union organizations Dignité and Federation of Autonomous Trade Unions of Côte d'Ivoire (FESACI) in order for them to rebuild their headquarters since the labour exchange premises are entirely occupied by the General Union of Workers of Côte d'Ivoire (UGTCI).

Cases Nos. 1512 and 1539 (Guatemala)

32. At its meetings in November 1997 and March 1998, the Committee requested the Government to keep it informed 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) [see 308th Report, para. 394(b), and 309th Report, para. 19]. In its meeting in November 1998 the Committee noted the Government's reply in which it indicated that it would communicate a copy of the report of the commission; the Committee continued to await receipt of the report.

33. In a communication dated 29 January 1999, the Government sent a copy of a statement of the Commission on Historical Clarification according to which it indicated that it would finish its work in the course of January 1999 and that, at that stage, its report would be submitted to the parties and the United Nations Secretary-General who would render it public; it is the commission in question that will determine the date of the submission which should be during the month of February 1999. The Committee continues to await receipt of the report.

Case No. 1876 (Guatemala)

34. In its previous examination of this case (November 1998), the Committee noted in respect of the inquiries concerning the alleged rape of trade unionist Vilma Cristina González and into the alleged detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enriquez Garcia and Belarmino González de León, the Government's indication that these persons -- who are pursuing their activities as usual -- were still not collaborating with the authorities in the inquiries which is why no progress has been made. The Committee pointed out that it would only pursue its examination of these allegations if the complainant sent additional information on the acts alleged and on their lack of collaboration in the inquiries [see 311th Report, para. 47]. The Committee notes that the complainant has not sent the additional information requested and therefore considers, as it had announced previously, that this aspect of the case does not call for further examination. Furthermore, as concerns the allegations of acts of anti-union discrimination in the El Salto farm, the Committee requested the Government to carry out an inquiry to reply specifically to the allegations of discrimination and to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activities [see 311th Report, para. 50]. In its communication dated 29 January 1999, the Government stated that the recourse to annul this matter was declared inappropriate on 19 September and none of the parties demonstrated an interest in continuing this route; therefore the file was closed. The Committee takes note of this information.

Case No. 1936 (Guatemala)

35. In its previous examination of the case (November 1998), the Committee requested the Government to keep it informed of the outcome of two criminal proceedings, the first one concerning the theft of an item of moveable property belonging to the National Electrification Institute lodged against members of this Institute's trade union, and the second concerning an individual action lodged by the administrative manager of the Institute against a group of workers [see 311th Report, para. 51]. In a communication dated 29 January 1999, the Government indicated that the moveable property referred to in the first criminal proceedings had been returned by the trade unionists to the Institute; the administrative manager of the Institute considered the case settled. As regards the second criminal proceedings, the Government indicated that it was an individual action lodged personally by the manager and that the public prosecutor had requested the judicial authority to end the proceedings. The Committee takes note of this information.

Case No. 1883 (Kenya)

36. The Committee last examined this case at its November 1997 meeting [see 308th Report, paras. 45 to 47]. The Committee had requested the Government to transmit a copy of the decision concerning the deregistration of the Kenya Wildlife and Allied Workers' Union which was still pending in the High Court.

37. In a communication dated 6 October 1998, the Government transmits a copy of the court proceedings of 7 October 1997 in which the High Court dismissed the application of the union. It appears from the decision that the Court rejected the application of the union on the basis that a recourse in mandamus was not the proper remedy in this case and that the complainant should have exhausted the relevant machinery rather than going for what the counsel of the union saw as a quick remedy to the problem. As stated by the Government, it appears from the decision that the union has the possibility to pursue this matter further. In this respect, the Committee requests the Government to keep it informed of any other legal proceedings the union might decide to take as well as to inform it of the outcome of such proceedings.

Case No. 1877 (Morocco)

38. At its meeting in June 1998, the Committee had requested the Government to keep it informed of developments with regard to the judicial proceedings instituted by the workers of the SOMADIR company in Casablanca and El Jadidale who had been dismissed or suspended on account of their legitimate trade union activities [see 310th Report, paras. 27 to 29]. In a communication dated 29 October 1998, the Government states that 33 workers have been reinstated in their jobs, that in three cases the parties have settled out of court through conciliation proceedings before the judge and that in three other cases a final decision has been handed down in favour of the dismissed workers, who have received the statutory compensation. It states that seven other cases are pending before the court of appeals while the rest are pending before the court of first instance. While noting this information with interest, the Committee requests the Government to keep it informed of developments with regard to the judicial outcome of this case.

Case No. 1719 (Nicaragua)

39. The Committee last examined this case, which concerns dismissals in the customs sector following a strike in May 1993, during its November 1997 meeting [see 308th Report, paras. 48 to 52]. On this occasion, the Committee recalled that it had 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 [see 304th Report, paras. 395 to 416].

40. In communications dated 8 January, 23 February and 4 May 1998, the National Union of Employees (UNE) complained that the Government did not comply with the recommendations formulated by the Committee in June 1996 and did not reinstate or compensate the workers dismissed in the customs sector. The complainant insisted on the fact that the workers dismissed following the strike amounted to 144, and amongst them were all the trade union leaders of the unions William Ruiz Martinez, Héroes y Mártires del Sur, Pablo López, Advana El Espino as well as the FETRAP Federation.

41. In communications dated 5 October 1998 and 25 January 1999, the Government states that harmonious industrial relations do exist in the customs sector and indicates that a collective agreement has been reached between the General Directorate of Customs and the Union of Customs Workers, a copy of which is attached.

42. The Committee takes note of this information. The Committee regrets that despite the time elapsed since its recommendations (June 1996), the parties concerned have not been able to reach an agreement on the reinstatement of the workers dismissed following the strike of 1993. The Committee is fully aware of the difficulties with respect to the reinstatement of workers who were dismissed nearly six years ago and therefore urges the Government to take all necessary measures to ensure that the parties concerned do reach an agreement on full compensation for the workers dismissed, in the case that reinstatement could prove impossible.

Case No. 1903 (Pakistan)

43. The Committee last examined this case at its June 1997 meeting [see 307th Report, paras. 39 to 41]. The Committee had requested the Government, with respect to the revocation of the decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union, to forward it a copy of the said decision delivered by the Industrial Relations Commission (NIRC) on appeal. Regarding the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee had requested the Government to keep it informed of the status of the labour court proceedings and any further appeal on this matter, and to forward to it a copy of the judgement as soon as it would be rendered.

44. In its communication dated 2 February 1999, the Government forwards a decision of the NIRC of 28 May 1997 which rules that the appeal concerning the revocation of the decision to suspend the Pak China Fertilizer Limited Employees' Union is accepted and that the case is remanded to the lower court and that a decision should be rendered within two months. The decision of the NIRC also mentions that the said union will continue to be suspended until the decision is rendered.

45. While taking note of this decision of 28 May 1997, the Committee observes that the Government had stated in its previous communication that the Registrar of Trade Unions had reinstated the union on 5 April 1997. Therefore, the Committee requests the Government to indicate what is the current status of the union and to confirm that it is able to carry out its activities normally. With regard to the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee urges the Government to indicate the status of the labour court proceedings and to forward it a copy of the relevant judgement as soon as it is rendered.

Case No. 1796 (Peru)

46. At its meeting of June 1998, the Committee had requested the Government to keep it informed of the outcome of the proceedings concerning the dismissals of the trade union leaders Delfín Quispe Saavedra, Dionisio Mejía Ramos and Iván Arias Vildoso.

47. In its communication of 4 February 1999, the Government states that: (1) the proceedings concerning Delfín Quispe Saavedra are still pending and the Government has been awaiting the delivery of the sentence by the Tribunal since 10 December 1998; (2) concerning the case of Dionisio Mejía Ramos, the Division of Constitutional and Social Law of the Supreme Court rejected, on 27 October 1997, the appeal lodged by the complainant and referred it back to the Civil Chamber on 6 March 1998. This proceeding is now closed and has been filed in the archives of the Labour Tribunal; (3) concerning the case of Iván Arias Vildoso, the Government is still awaiting the decision of the Supreme Court in this affair.

48. The Committee takes note of this information. The Committee requests the Government to keep it informed of the final outcome of the proceedings concerning the trade union leaders Delfín Quispe Saavedra and Iván Arias Vildoso.

Case No. 1813 (Peru)

49. At its meeting in June 1998 [see 310th Report, paras. 41 to 43], the Committee requested the Government to keep it informed of the results of the proceedings concerning the death of trade unionists Alipio Chueca and Juan Marco Donayre Cisceros as a result of the shots fired by CORDECALLAO security staff (the Government had stated that three persons had been charged). In its communication of 23 December 1998, the Government states that there was sufficient evidence in the context of the legal proceedings to open a public hearing which began on 3 September 1998 and is still ongoing. The Committee notes this information and requests the Government to keep it informed of the outcome of the proceedings.

Case No. 1944 (Peru)

50. At its meeting of November 1998, the Committee made the following recommendations on the pending allegations [see 311th Report, para. 547]:

Recalling 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, and that 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, and 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, the Committee requests the Government:

to take the necessary measures to ensure that Mr. Mickey Juán Alvarez Aguirre, who was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress in February 1996 is reinstated in his job without loss of acquired benefits and that he is once again able to exercise his trade union responsibilities rapidly and without impediment. It requests the Government to keep the Committee informed about the issues raised;
to take the appropriate measures to ensure that in future restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination;
concerning the refusal of the municipality of metropolitan Lima to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Committee trusts that the decision rendered in respect of the appeal made by the Federation of Peruvian Electricity and Energy Workers will reflect the principles of freedom of association and requests the Government to keep it informed of the outcome of the appeal as well as any element which would clarify the situation in respect of the legal requirements for the ISTED to be able to function as a higher professional training centre;
with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Committee requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.

51. In its communications of 9 December 1998 and 4 February 1999, regarding the dismissal of trade union leader Mickey Juán Alvarez Aguirre, the Government states that following the adoption of Acts 26546 and 26623, the judiciary was undergoing a process of restructuring which involved considerable staff reductions. Facing a real threat of weakening the administration of justice, it was decided not to give any follow-up to the communication of Mr. Alvarez Aguirre in which he was requesting his trade union leave of absence as Secretary of the Workers' Trade Union of the District of Lambayeque. The Government insists that this refusal was never used to carry out anti-union discrimination as the Committee had concluded. The decision of the President of the High Court of Lambayeque to refuse the trade union leave of absence and requesting the immediate reinstatement of Mr. Alvarez Aguirre was compulsory. This decision was not followed by Mr. Alvarez Aguirre, who limited himself to sending communications to the President of the High Court concerning the denial of granting him the said leave of absence. These communications were submitted to the Executive Commission which then notified once again Mr. Alvarez requesting him to reintegrate his post, but without any success. In any case, Mr. Alvarez Aguirre should have reintegrated his work post regardless of his right to lodge a complaint with regard to the denial to grant him his trade union leave of absence. Nevertheless, Mr. Alvarez Aguirre did not follow the orders of his superiors and abandoned without reasons his work post on 23, 24 and 25 February 1996, as well as from 8 April. Thus, the disciplinary procedure which followed was based on a serious breach of conduct (abandoning his work post) and did not amount to anti-union discrimination from the Government as it was alleged by the National Federation of Judiciary Workers. According to the Government, it did not constitute anti-union discrimination nor was it linked to his status as trade union leader. In the labour legislation, trade unionists are duly protected in the case of restructuring which involves staff reductions. In this regard, article 30 of Decree No. 25593 on labour relations provides that trade union protection guarantees that certain workers cannot be dismissed nor transferred to another work post of the same enterprise without a valid justification or without the consent of the worker involved. The consent of the worker is not required if the transfer does not prevent the trade union leader to exercise his trade union activities.

52. In this respect, the Committee recalls that the complainant had alleged (without the Government's denial) that Mr. Alvarez Aguirre had used his trade union leave of absence in conformity with an administrative decision of the Supreme Court (No. 023-A-87 D/GA/PS) which grants trade union leave of absence on the sole condition to inform the presidents of the committees concerned and the personnel office. In these circumstances, the Committee considers that the necessity to operate massive restructuring cannot be used by the Government as an excuse to refuse to grant a trade union leave of absence, and this is particularly true when the restructuring involves staff reduction and even more so in the case of a dismissal of a trade union leader who was using his trade union leave of absence. Therefore, the Committee once again requests the Government to take the necessary measures to ensure that Mr. Alvarez Aguirre is reinstated in his job without loss of acquired benefits.

53. Concerning the refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Government states that the municipality of metropolitan Lima has not yet rendered its decision concerning the appeal lodged by the Federation of Peruvian Electricity and Energy Workers. The Government declares that it will transmit to the Committee the decision as soon as it is handed down. The Committee is thus waiting for the decision to be rendered.

54. Finally, with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Government states that the final appeal lodged by the Federation of Peruvian Electricity is still pending. The Government declares that it will transmit the decision in question as soon as it is rendered. The Committee is thus awaiting the final decision to be handed down.

Case No. 1785 (Poland)

55. At its June 1998 meeting, the Committee had requested the Government to keep it informed of any progress concerning cash compensation to trade union organizations and assignations of immovables to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ). On that occasion, the Committee had noted the complexity of the question of divisions of assets of the former Trade Union Association as well as the objections of NSZZ "Solidarnosc" concerning various decisions and regulations of the Minister of Labour and Social Policy and the work of the Stock-Taking Commission [see 310th Report, paras. 53 to 65].

56. In a communication dated 1 October 1998, the Government had stated that the Minister of Labour and Social Policy had prepared and submitted on 29 June 1998, for interministerial consultations, the necessary draft amendment of the Act of 25 October 1990 (the Act of 25 October 1990) concerning the restitution of assets forfeited by trade unions and social organizations following the imposition of the martial law. The mentioned amendment proved necessary in view of the need for possibly urgent regulation of due non-cash liabilities of the state Treasury in result of:

the pronouncements by the Social Revindication Commission -- the total amounts due had already reached the level of almost PLN82 million (including statutory interests for delays accumulated before 31 July 1998);
execution of newly arising non-cash liabilities of the state Treasury.

57. The Government had indicated that the above-mentioned draft of the amending Act had also taken account of the expectations for the change of certain provisions of the Revindication Act, which had been expressed by NSZZ "Solidarnosc" during the preliminary consultations.

58. The Government had further indicated that, together with the above-mentioned draft amendment of the Revindication Act, a draft executory regulation of the Council of Ministers had been submitted for interministerial consultation. The regulation had been necessary for governing the practical side of the Treasury's liabilities. Both draft texts had been transmitted, in accordance with article 19 of the Trade Union Act, to NSZZ "Solidarnosc" and to the Polish Trade Union Alliance (OPZZ) seeking trade union opinion.

59. Finally, the Government had stated that the actual state of work on the mentioned draft texts meant that they would be examined by the Council of Ministers in autumn 1998 and that the draft Act would immediately be submitted to the Diet (Parliament). The executory regulation of the Council of Ministers would be issued directly after the provisions of the above-mentioned amending Act would come into force. In a communication dated 18 February 1999 the Government stated that the law amending the law of 25 October 1990 was adopted on 3 December 1998 and entered into force on 30 December 1998.

60. As regards the objections of NSZZ "Solidarnosc" that its vested rights had been violated by section 45 of the Trade Union Act, the matter was brought before the Constitutional Tribunal which rejected it on 3 December 1997. The Government also mentioned that NSZZ "Solidarnosc" had challenged the constitutionality of section 7 of the Act of 9 May 1997 amending the Trade Union Act and concerning Workers' Recreation Fund -- such fund being considered as enterprise assets pursuant to the Civil Code. The application of NSZZ "Solidarnosc" was granted by the Constitutional Tribunal on 3 June 1998 and by the Diet on 28 August 1998. The Parliament should adopt a new text on the assignation of Employees' Recreation Fund assets. In its communication of 18 February 1999, the Government specified that in December 1998 the Senate adopted a bill which was transmitted to the Diet.

61. The Committee takes note with interest of the detailed information provided by the Government and once again expresses the hope that all issues concerning trade union assets will be resolved in the near future and asks the Government to keep it informed in this regard.

Case No. 1581 (Thailand)

62. The Committee last examined this case at its November 1998 meeting when it noted that the State Enterprise Labour Relations Bill which has been referred to by the Government since 1993 had finally been adopted by the House of Representatives in the fall of 1998 but was being challenged before the Constitutional Court [see 311th Report, para. 89].

63. In a communication dated 4 February 1999, the Government indicates that on 12 November 1998 the Constitutional Court decided that the Bill was enacted contrary to the provisions of the present Constitution and the Bill therefore lapsed according to section 262, paragraph 3, of the Constitution. The Government stresses the efforts it has made to restore to state enterprise employees the right to organize and to bargain collectively and regrets that its attempts over the past years to secure the reform passage of the SELR Bill ended in November due to a determination based on legal technicalities that the Bill was unconstitutional. The Government reaffirms its commitment to reform the Bill and states that the Ministry of Labour and Social Welfare has immediately reintroduced the reform passage which has been approved by Cabinet and forwarded to the House of Representatives, where it passed its final reading on 20 January 1999 and was forwarded to the Senate. The Bill has now passed its first reading in the Senate and been referred to an ad hoc scrutinizing committee.

64. The Committee takes due note of this information. It must however recall that, during its examination of this case in November 1991, the Committee had noted with great concern the numerous and serious incompatibilities between the State Enterprise Labour Relations Act (SELRA) and the principles of freedom of association and urged the Government to take measures to repeal this Act without delay [see 279th Report, para. 482]. The Committee trusts that the necessary measures will be taken in the near future to amend the legislation so as to restore fully the right to organize and to bargain collectively to state enterprise employees and requests the Government to keep it informed in this regard.

Case No. 1895 (Venezuela)

65. At its June 1998 meeting [see 310th Report, para. 66], the Committee examined allegations concerning the arbitrary detention of Mr. José Ramón Pacheco, President of the Single Grass-Roots Union of Workers of the Department of Education (SUBATRA). The Committee noted that the judicial authorities had decided to release Mr. José Ramón Pacheco while the investigation continued, and requested the Government to keep it informed of the results of the criminal proceedings against the trade union officer for suspected falsification of documents. In its communication of 4 November 1998, the Government stated that the investigation is still going on since responsibility has not yet been determined, though there is some evidence that the commission committed an error, but the guilty parties have not yet been determined. The Committee takes note of this information, and requests the Government to keep it informed of the results of the judicial proceedings in question.

* * *

66. Finally, as regards Cases Nos. 1618 (United Kingdom), 1834 (Kazakhstan), 1837 (Argentina), 1843 (Sudan), 1849 (Belarus), 1850 (Congo), 1869 (Latvia), 1884 (Swaziland), 1886 (Uruguay), 1891 (Romania), 1900 (Canada/Ontario), 1914 (Philippines), 1918 (Croatia), 1921 (Niger), 1926 (Peru), 1937 (Zimbabwe), 1938 (Croatia), 1942 (China/Hong Kong), 1956 (Guinea-Bissau), 1957 (Bulgaria), 1969 (Cameroon), 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. In addition, the Committee has received information concerning Cases Nos. 1698 (New Zealand), 1826 (Philippines), 1852 (United Kingdom), 1854 (India), 1862 (Bangladesh), 1890 (India), 1908 (Ethiopia), 1912 (United Kingdom/Isle of Man), 1914 (Philippines) 1945 (Chile) and 1966 (Costa Rica), which it will examine at its next meeting.

Case No. 1947

Definitive report

Complaint against the Government of Argentina
presented by
the Association of Aeronautical Personnel (APA)

Allegations: Obstruction of collective bargaining,
anti-union discrimination

67. The complaint in this case is contained in a communication from the Association of Aeronautical Personnel (APA) dated 21 November 1997. The Government sent its observations in communications dated 22 May and 6 and 28 October 1998.

68. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

69. In its communication dated 21 November 1997, the Association of Aeronautical Personnel (APA) alleges that the enterprise Aerolíneas Argentina S.A. (Argentine Airlines Ltd.) set up a controlled cargo-handling undertaking (Aerohandling) to which workers of another enterprise operating at airports were transferred. After the APA decided to begin negotiations with the company with a view to concluding a collective agreement, the company, after much procrastination, delay and obstruction of the negotiations, finally appointed representatives who, however, did not respond to the proposal put forward by the trade union organization, did not meet with union representatives and did not recognize the union's rights.

70. The complainant organization adds that during the period of the negotiations, the company dismissed the union official, Sergio Irigoyen, who had been participating in the negotiations.

B. The Government's reply

71. In its communications of 22 May and 6 and 28 October 1998, the Government states that the dispute between the enterprise Aerohandling and the Association of Aeronautical Personnel (APA) ended with the signing of an agreement between the two parties; the trade union delegate Mr. Irigoyen had the agreement officially registered.

72. As regards the dismissal of Sergio Irigoyen, the Government supplies the following: (1) a copy of the ruling (No. 60) handed down by the National Labour Court of First Instance which excludes the union delegate from the terms of the guarantee set out in section 52 of National Act No. 23551 ("fuero sindical"); in the reasons given for the ruling, reference is made to the fact that the defendant did not contest the notification of the charge made against him by the employer enterprise (obstructing the work of other workers, verbal and physical assault, etc.), and consequently none of the allegations made by the enterprise and cited to justify the action taken against Mr. Irigoyen could be deemed to have been contested; (2) a copy of the decision by the Appeal Court concerning the appeal lodged by Mr. Irigoyen against the ruling of the lower court; this decision confirms the original ruling and states, among other reasons given for the decision, that Mr. Irigoyen says nothing concerning the events of 29 October 1997 in which he was involved; (3) a copy of the court ruling which notes the fact that Mr. Irigoyen withdraws his action against the employer enterprise for reinstatement; the ruling notes that Mr. Irigoyen expressly withdraws the action and waives any claim in respect of the measures taken by the company, which implies tacit recognition that the company is in the right.

C. The Committee's conclusions

73. The Committee notes that in the present case, the complainant organization alleges that the company Aerohandling obstructed and delayed the negotiations of a collective agreement and, during the period of the talks, dismissed a trade union delegate (Sergio Irigoyen) who was taking part in them.

74. As regards the allegation concerning the obstructive attitude of the company Aerohandling during the negotiations of a collective agreement, the Committee notes with interest the Government's statement to the effect that the dispute has ended with the signature of an agreement between the parties. This being the case, the Committee will not proceed with the examination of this allegation.

75. As regards the allegation concerning the dismissal of the trade union delegate Sergio Irigoyen during the period of collective negotiations in which he was participating at the company Aerohandling, the Committee notes the Government's statement to the effect that Mr. Irigoyen expressly withdrew his action for reinstatement before the judicial authority. The Committee also notes that previously, Mr. Irigoyen did not, when appearing before courts of various instance, contest the charges made against him by the employer enterprise (obstructing the work of other workers, verbal and physical assaults, etc.), nor did he respond expressly to the allegations made against him. This being the case, the Committee will not proceed with the examination of this allegation.

The Committee's recommendation

76. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Case No. 1982

Definitive report

Complaint against the Government of Brazil
presented by
the Single Central Organization of Workers (CUT)

Allegations: Suspension of a trade union leader

77. The complaint in this case was submitted in a communication from the Single Central Organization of Workers (CUT) dated 4 August 1998. The Government sent its comments in a communication dated 20 October 1998.

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

A. The complainant's allegations

79. In its communication dated 4 August 1998, the Single Central Organization of Workers (CUT) alleges that, in flagrant violation of the principles of freedom of association, the management of the enterprise Volkswagen do Brazil Ltd. suspended Mr. Renan Cavalcante Santana, a member of the works council, and conducted an inquiry, claiming that he had committed a serious fault. The complainant organization indicates that Mr. Santana had been working in the enterprise for 25 years and was discharging his second mandate in the works council which had been established on the basis of a collective agreement. According to the complainant organization the enterprise argued that the trade union leader was trying to destabilize internal harmony by criticizing and questioning enterprise decisions in his capacity as trade union leader.

B. The Government's reply

80. In its communication dated 20 October 1998, the Government states that the parties to the dispute, the enterprise Volkswagen do Brazil Ltd. and Mr. Renan Cavalcante Santana, reached a settlement terminating Mr. Santana's contract of employment and regulating other related issues, which was ratified by the fifth Board of Conciliation and Judgement of San Bernardo del Campo. The settlement was concluded freely and spontaneously by the parties; the enterprise undertook to compensate Mr. Santana and to provide him with the instrument rescinding his contract, in order to enable him to withdraw his deposits from the length of service guarantee fund and apply to the competent authority for the unemployment insurance guide and the request for the payment of unemployment insurance. Following the payment of the compensation, the enterprise and the trade union leader would consider the contract of employment to be terminated. Lastly, the Government states that the settlement reached was endorsed by the judicial authorities in order for its legal and regulatory effects to apply. (The Government annexes to its reply a copy of the settlement record concluded by the parties before the Board of Conciliation and of the decision of the Regional Labour Court of the second region of San Pablo.)

C. The Committee's conclusions

81. The Committee observes that in this case the complainant organization alleged the suspension of the trade union leader, Mr. Renan Cavalcante Santana, from the Volkswagen do Brazil Ltd. enterprise for having criticized and questioned enterprise decisions in his capacity as trade union leader.

82. The Committee observes the Government's statements that: (1) the parties to the dispute reached a settlement ratified by the fifth Board of Conciliation and Judgement of San Bernardo del Campo; (2) the settlement was concluded freely and spontaneously by the parties; (3) the enterprise undertook to compensate Mr. Santana (53,200 reales) and to provide him with the instrument rescinding his contract, in order to enable him to withdraw his deposits from the length of service guarantee fund and apply to the competent authority for the unemployment insurance guide and the request for the payment of unemployment insurance; and (4) following the payment of the compensation, the enterprise and the trade union leader would consider the contract of employment to be terminated.

83. Given these circumstances, observing that the complainant organization has sent no additional information criticizing the court settlement concluded between the enterprise and the trade union leader, the Committee considers that there is no need to continue with an examination of this case.

The Committee's recommendation

84. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Case No. 1987

Definitive report

Complaint against the Government of El Salvador
presented by
Communications International (CI)

Allegations: Refusal to recognize and grant legal
personality to various trade unions

85. This complaint is contained in a communication from Communications International dated 26 August 1998.

86. The Government sent its comments in communications dated 2 November and 17 December 1998.

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

A. The complainant's allegations

88. In its communication dated 26 August 1998, Communications International (CI) states that the Salvadoran Association of Workers of the National Telecommunications Administration, ANTEL (ASTA) is one of its affiliated organizations and has requested it to present a complaint against the Government of El Salvador for the violation of trade union rights.

89. The CI explains that on 27 August 1997, the ASTA-ASTTEL trade unions requested the authorities of the Ministry of Labour to recognize the legal existence of the National Union of Telecommunications and Related Unions (ATANTEL) and that on 2 September of the same year the Ministry of Labour refused to recognize ATANTEL contending that the National Telecommunications Administration (ANTEL) was an independent public institution and that it was illegal to recognize trade unions that were not enterprise-based. The members of ATANTEL lodged an application for reconsideration before the same ministry, which was in turn rejected. In September/October 1997 amendments were made to the bill for the privatization of ANTEL. This delayed decisions on ATANTEL's new requests for legal recognition. During this period, Communications International and its affiliates in the region sent various messages of solidarity to the authorities of El Salvador in support of the telecommunications' workers and their right to organize.

90. According to the CI, on 29 December 1997 the winding up of ANTEL began and all its workers were paid and dismissed, then later contracted by the new enterprise, Telecommunications Company of El Salvador (CTE S.A. de C.V.). However, on 2 January 1998, 72 workers were dismissed, all of whom were leaders or former leaders of the ASTA-ASTTEL, ATTES and SINTEL trade unions. The enterprise stated that these workers were opposed to the privatization process. It justified the dismissals by claiming that the workers in question were not working efficiently, given that they spent their time on other activities which were incompatible with the enterprise's new functions (i.e. trade union activities). The complainant organization adds that a group of workers from the ASTA-ASTTEL unions convened a meeting to establish a trade union within the enterprise. The National Telecommunications Administration (ANTEL) was dissolved and wound up in accordance with Decree No. 53, as amended. All its assets and liabilities were transferred to the Telecommunications Company of El Salvador, a limited liability company (CTE S.A. de C.V.) and to Telecommunications International, also a limited liability company (INTEL S.A. de C.V.). On 13 February 1998, the Ministry of Labour rejected the request for legal recognition made by the ASTA-ASTTEL workers. Consequently, on 22 February 1998, 39 workers held a meeting and approved the establishment of a trade union called ASTTEL. The new request for recognition was also rejected by the Ministry of Labour, which claimed that the abbreviation ASTTEL had nothing to do with the official name of the union (Works Union of Telecommunications Workers). On 1 May 1998, 44 workers met and approved the establishment of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador S.A. de C.V. (SUTTEL), but on 24 June 1998 the Ministry of Labour rejected the legal existence of that union, arguing that national legislation does not allow the organization of trade unions until six months have passed since a prior request for recognition.

91. The CI stresses that although the workers have used all possible means provided by law, the authorities have found a variety of arguments to reject the legal existence of the trade union and states that the workers have submitted a legal claim to the Supreme Court of Justice of El Salvador.

92. In the view of the CI, the behaviour of the Ministry of Labour of El Salvador in this case -- and possibly also the relevant legal provisions -- are incompatible with the right of workers to establish organizations of their own choosing, without prior authorization, and the dismissal of workers from the enterprise constitutes an act of anti-union discrimination.

B. The Government's reply

93. In its communication dated 2 November 1998, the Government states that on 7 August 1997 the Chairman of the provisional executive committee of the Union of Workers in Telecommunications and Related Industries (ANANTEL), requested in writing that it be granted legal personality. According to its certificate of establishment it was set up on 31 July 1997 by 46 workers from the National Telecommunications Administration, four workers from the El Salvador Information Service Agency and two workers from the José Simeón Cañas Central American University radio station. On 2 September 1997 the request to grant legal personality to this union was denied because the workers of independent public institutions -- such as the National Telecommunications Administration (ANTEL) -- can only form works unions, in accordance with clause 20, section 209 of the Labour Code, which provides that "a works union consists of workers employed in the same enterprise, commercial establishment or independent public institution". The application by the provisional executive committee for reconsideration of that decision was dismissed because the workers of the National Telecommunications Administration (ANTEL) were not being refused the right to set up a trade union but were simply being told that the Labour Code stipulates that they should establish themselves as a works union. In a decision dated 27 April 1998 the office of the procurator for the defence of humans rights exonerated the Ministry of Labour and Social Welfare from any responsibility in this matter.

94. The Government indicates that section 2 of the Privatization Act of the National Telecommunications Administration provides as follows: "The division of ANTEL will be carried out by transferring its assets, rights and liabilities to the following limited liability companies: Telecommunications Company of El Salvador, a limited liability company, which could use the trade name of ANTEL, and which in future will be abbreviated to CTE S.A. de C.V.; and Telecommunications International, a limited liability company, which in future will be abbreviated to INTEL S.A. de C.V. Both enterprises will provide public telecommunications services. These companies will be considered for all legal purposes to be private companies regulated by the provisions of the above Act, the Commercial Code and other applicable national legislation. The wording of the Privatization Act uses the expression "the companies" for these enterprises.

95. Section 43 of the above Act provides as follows: "Once the procedure indicated in the two previous sections has been verified, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL, except those working at the ANTEL hospital, who will retain at least the same salaries with their new employer. If after these contracts have been concluded, any of the workers thus contracted are dismissed on any of the grounds for termination of contract with liability for the employer established in the Labour Code, the employer will pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service. The workers providing services at the ANTEL hospital and who have not been retained by the ISSS will receive a bonus of an additional 25 per cent to that established in section 41 of this Act".

96. The Government adds that on 5 January 1998 the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) requested that legal personality be granted to this union which, according to its certificate of establishment, was founded on 2 January 1998 by 43 workers from CTE S.A. de C.V. An inspection was carried out at CTE S.A. de C.V. to ascertain whether the founders of the union were working at 9 a.m. on 2 January 1998. The inspection report established that: (a) the Works Union of Telecommunications Workers of El Salvador (ASTTEL) was established on the basis of a notarial certificate on the premises of the Salvadoran Association of Telecommunications Workers, with Dr. Lilian Guadrón acting as the attesting notary; (b) on the day the notarial certificate was executed (2 January 1998), which was when CTE S.A. de C.V. began its operations, ten of the union's founders did not provide any services to CTE S.A. de C.V. and consequently the employment relationship did not come into being as they did not even turn up for work that day, therefore labour legislation is not applicable to them and they do not constitute workers; (c) a further 20 founders of the trade union were not present at 9 a.m. on 2 January 1998 at the place where, according to the notarial certificate, the constituent meeting of the trade union was held. These persons categorically stated that they had signed the certificate of establishment on a different date and in a different place, not during the constituent meeting of the union, which explains why their signatures are on the certificate although they did not attend. The report also reveals other anomalies and irregularities in the certificate which clearly indicate intentional falsification; (d) five founders received the special compensation referred to in section 43 of the Privatization Act of the Telecommunications Administration following their dismissal on 2 January 1998, as evidenced by the corresponding liquidation documents issued in accordance with the provisions of section 402 (20) of the Labour Code, and were therefore no longer employees of CTE S.A. de C.V. at the time when the certification and other documents were submitted.

97. Furthermore, the notarial certificate infringed legislation in the following ways, inter alia: (a) the occupation or trade of the alleged executing parties was not recorded, in violation of section 32, No. 40 of the Notary Act; (b) instead of recording their occupation or trade, in the preamble to the certificate, under general information relating to the executing parties, the notary states that they are workers of CTE S.A. de C.V., thus infringing section 32, No. 60, which provides that "the notary shall not put anything attributed to the appearing parties with which they have not expressly agreed" and at no time, as seen in the document itself, did the executing parties make such a statement to the notary; (c) section 32, No. 90 was also violated, which provides that "involuntary deletions, amendments, insertions, crossings out and any other corrections shall be noted and certified in full at the end of the instrument, in the presence of the appearing parties and above the signatures" and in the notarial certificate in question the involuntary deletions -- of the names of both the notary and the trade union -- were not certified, which automatically renders the document invalid under the provisions of section 263 of the Code of Civil Procedure, which section 602 of the Labour Code expressly stipulates to be applicable to industrial procedures; and (d) section 32, No. 10 was also violated, which stipulates that "the notary shall explain to the executing parties the legal effects of the certificate or contract and note that this has been done in the instrument", yet there is no indication in the certificate that the legal effects of the instrument were explained to the executing parties and nothing was recorded to this effect; (e) the provisions of section 51 of the Notary Act were not fulfilled as the notary did not sign any of the sheets that comprise the notarial certificate and the stamp that should be at the top of sheet No. 3 is missing.

98. On the basis of all the above considerations and the legal provisions cited, and given the lack of the legal quorum necessary to establish an occupational association as stipulated in section 211 of the Labour Code, the Ministry of Labour and Social Welfare decided to "deny the request for legal personality made by the Works Union of Telecommunications Workers of El Salvador".

99. The Government states that on 23 February 1998, the Chairman of the provisional executive committee of the Works Union of Telecommunications Workers of El Salvador (ASTTEL) -- a trade union which had been established before a notary at 9 a.m. on 22 February 1998 -- requested that the trade union be granted legal personality. On 30 March 1998 a decision was handed down which stated that, according to the records, on 2 January 1998 an application had been made to establish the Works Union of Telecommunications Workers of El Salvador; the granting of legal personality to that trade union was denied on the grounds listed in the decision handed down by the Ministry of Labour on 11 February 1998; on 22 February 1998 an application was made to establish another trade union with the same name and address as the previous one; its request to be granted legal personality was submitted to the Ministry of Labour on 23 February 1998 by a different person acting as chairman of the provisional executive committee, in violation of the provisions of section 248 of the Labour Code which stipulates "a subsequent application to establish a trade union may only be made six months after the previous one".

100. In addition, this trade union was founded by 39 persons, 14 of whom had been involved in establishing the previous one; a further four were employees in positions of responsibility and one was the employers' representative of the Telecommunications Company of El Salvador S.A. de C.V. Both these circumstances, either together or individually, reduce the number of founding members to less than 35 persons, infringing the provisions of section 211 of the Labour Code which provides that "any workers' union requires a minimum of 35 members to be set up and operate".

101. Therefore, for the reasons given and the legal provisions cited, the Ministry of Labour denied the request for the granting of legal personality to the Works Union of Telecommunications Workers of El Salvador.

102. On 28 May 1998, the Government continues, three members of the provisional executive committee of the Trade Union for the Unity of Workers of the Telecommunications Company of El Salvador (SUTTEL) requested that their trade union be granted legal personality. On 17 June 1998 an administrative decision was handed down which states that under the relevant legal provisions it was not permitted to make a further application to establish the union as six months had not passed since the application had been made to establish the Works Union of Telecommunications Workers of El Salvador, and neither was any reference made to the purpose of the union. For the reasons given and the legal provisions cited, the Ministry denied the granting of legal personality to SUTTEL.

103. On 30 June 1998 an administrative decision declared inadmissible the request made by three members of the provisional executive committee of this trade union to reconsider its request for legal personality as, according to the Code of Civil Procedure, that request should have been made on the day of or the day following the contested decision.

104. Lastly, the Government states that on 7 September 1998 the Chairman and Vice-Chairman of the provisional executive committee of the Works Union of Telecommunications Employees of El Salvador (SITTEL), founded at 9 a.m. on 23 August 1998, requested that the trade union be granted legal personality. This request is still pending.

105. As regards the allegations concerning the dismissal of 72 workers on 2 January 1998, all of whom were leaders or former leaders of the trade unions ASTA, ASTTEL, ATTES and SINTEL, the Government refers in its communication dated 17 December 1998 to a communication from the Telecommunications Company of El Salvador, the contents of which is summarized below.

106. According to the Privatization Act of the National Telecommunications Administration, the employment relationships of all the ANTEL staff ended on 31 December 1997 when the assets, rights and liabilities of ANTEL were transferred to CTE S.A. de C.V. and all workers were paid the corresponding types and amounts of compensation, annual bonuses and holiday pay established in ANTEL's privatization provisions. These payments were recorded in documents where each of the compensated workers confirmed the termination of his or her employment relationship, stating that ANTEL had fully met the obligations arising from the Privatization Act of the National Telecommunications Administration, declaring it to be free from any responsibility of an industrial nature and releasing it from further obligations. Consequently, on 31 December 1997 all ANTEL workers stopped work, were legally compensated and ANTEL ended its operations. The payments in question were officially investigated by the Court of Audit of the Republic, as no payment could be made that was not stipulated by law. ANTEL fully concluded its activities.

107. The compensation payments made to the 72 persons referred to by the complainant organization amounted to a total of 7,353,113 colons and 91 centavos. Section 43 of the above-mentioned Privatization Act stipulates that "once the procedure outlined in the previous two sections has been carried out, the company CTE S.A. de C.V. will conclude employment contracts with the former workers of ANTEL. If after concluding these contracts any of the workers thus contracted are dismissed on the grounds for termination of contract with liability for the employer set out in the Labour Code, the employer shall pay special compensation equivalent to what the worker would otherwise have earned over 18 months of service". It was in keeping with this legal provision that CTE S.A. de C.V. contracted all the former workers of ANTEL in new employment relationships, entirely independent of and with no connection whatsoever to the previous one. The contracted workers included the workers mentioned by the complainant organization. Following their dismissal each of them was paid special compensation equivalent to the sum of 18 months' salary, except for two who did not collect their compensation, but it remains available for them. CTE S.A. de C.V. paid the 72 workers a total amount of 5,185,226 colons and 90 centavos. Each of the workers signed the corresponding confirmation of receipt on the form that the general directorate of the labour inspectorate provides for this purpose, in accordance with section 402 (2) of the Labour Code, confirming the termination of their individual contracts of employment, stating that CTE S.A. de C.V. had fully complied with the provisions of section 43 of the Act, each of them declaring said company to be free of any responsibility of an industrial nature. Dismissal as grounds for the termination of individual employment contracts is regulated by sections 55 et seq. of the Labour Code and originates from section 38, No. 11 of the Constitution of the Republic, according to which the Labour Code "shall in particular include the following rights (...) 11. An employer who dismisses a worker without valid grounds is required to compensate him in accordance with the law".

108. The conclusion to be drawn from all the above is that there has been no violation of trade union rights.

C. The Committee's conclusions

109. The Committee observes that in the framework of the privatization process of the National Telecommunications Administration (ANTEL) the complainant organization has alleged: (1) the refusal to recognize the trade union ATANTEL in September 1997; (2) the refusal to recognize another trade union set up by a group of workers from ASTA-ASTTEL on 13 February 1998; (3) the refusal to recognize a further trade union called ASTTEL set up on 22 February 1998; (4) the refusal to recognize a trade union called SUTTEL on 24 June 1998 and (5) the dismissal of 72 workers, all of whom were leaders or former leaders of the trade unions ASTA-ASTTEL, ATTES and SINTEL, on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the enterprise Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred.

110. The Committee notes that according to the Government: (1) the trade union ATANTEL was not recognized by the authorities because the workers of the former ANTEL did not set themselves up as a works union, which was a requirement as ANTEL was an independent public institution; of the 52 founders six were working in bodies other than ANTEL; (2) the trade union ASTTEL was not recognized because on the day it was established ten founders did not fulfil their work obligations, 20 did not attend the constituent meeting, five had received the special compensation provided in ANTEL's Privatization Act and had thus lost the status of employees. Furthermore, the notarial certificate contained various legislative infringements (the occupation or trade of the founders was not stated, the involuntary deletions of the names of the notary and the union were not noted down, the notary had not signed the individual sheets of the notarial certificate and the stamp was missing on one sheet); there was not the necessary quorum of workers/founders; (3) the trade union ASTTEL was again refused legal personality at a later date owing to the lack of the legal quorum that section 211 of the Code establishes, which is a minimum of 35 members (of the 39 founders, 14 had participated in setting up the previous trade union, four others were employees in positions of responsibility and one was an employers' representative) and furthermore because section 248 of the Labour Code provides that "a subsequent application to establish a trade union may only be made six months after the previous one"; (4) the application to establish the trade union SUTTEL was considered to be inadmissible and the granting of its legal personality was denied because six months had not passed since the application had been made to establish the trade union ASTTEL (whose legal personality had been denied); subsequently the request by three founders of SUTTEL to reconsider this administrative decision was dismissed as inadmissible as it did not comply with the time limit. The Committee also notes that the request for legal personality submitted by the trade union SITTEL on 7 September 1998 is still pending but it observes that this matter was not raised by the complainant organization.

111. The Committee notes that between September 1997 and June 1998 the authorities refused to grant legal personality to several trade unions which tried to set themselves up within ANTEL and in one of the two companies which acquired ANTEL's rights and liabilities following its privatization (Telecommunications Company of El Salvador S.A. de C.V.). One of these trade unions was twice refused legal personality. The Committee observes that the grounds given for refusing legal personality include: trying to establish a union which did not constitute a works union (but instead included workers from various institutions) in an independent public institution where only works unions are authorized; the lack of the minimum number of members stipulated by law -- i.e. 35; the legal impossibility of establishing a new trade union until six months have passed since an application was made to establish a previous one (even if it did not obtain legal personality); and non-compliance with requirements of form in the notarial certificate documenting the constituent meeting of the trade union. In the Committee's opinion, these grounds represent serious obstacles to trade union registration. In this respect, the Committee draws to the Government's attention that such requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 244].

112. In this respect, the Committee has considered 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" [see Digest, op. cit., para. 248]. In the Committee's view, it appears in the present case that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality).

113. In view of the above, the Committee concludes that the legislation violates the principles of freedom of association and regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador S.A. de C.V. The Committee therefore urges the Government to take measures with a view to amending legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate. Lastly, as regards the trade union SITTEL, the establishment of which is still pending (according to the Government), the Committee regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union.

114. With respect to the allegation concerning the dismissal of 72 workers (all of whom were leaders of ASTA-ASTTEL, ATTES and SINTEL) on 2 January 1998 (the privatization process of ANTEL was completed at the end of December 1997) by the Telecommunications Company of El Salvador S.A. de C.V., to which the assets, rights and liabilities of the privatized enterprise (ANTEL) were transferred, the Committee notes the Government's statements that: those concerned were paid the corresponding compensation and benefits, these persons accepted them and confirmed in writing the termination of their employment relationship on 31 December 1997; subsequently, in accordance with the Privatization Act they were contracted by the new enterprise and dismissed on 2 January 1998 on the grounds for termination of contract with liability for the employer established in the Labour Code, as provided in the Privatization Act, which stipulated further compensation for such an eventuality (in the case in point this was accepted by 70 of the 72 workers, who declared the enterprise to be free of any responsibility); the workers who did not accept the compensation were Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González. In this connection, the Committee observes that the Government has not denied the status of trade union leaders or former leaders of the 72 dismissed workers or that the dismissal was based on the grounds for termination of contract with liability for the employer, which does not call for the grounds for the dismissal to be cited.

115. In view of the above, the Committee deeply regrets these dismissals and calls the attention of the Government to the fact that proprietorial changes should not directly or indirectly threaten unionized workers and their organizations. [Digest, op. cit., para. 715]. The Committee also points out that in cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) [see Digest, op. cit., para. 960]. Likewise, in a previous case in which the Government considered the dismissal of nine trade union leaders to be part of restructuring plans, the Committee emphasized the advisability of giving priority to workers' representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest, op. cit., para. 961].

116. This being the case, given that 70 of the 72 dismissed trade union leaders or former leaders accepted the legal compensation, the examination of the case will only proceed with respect to the two who did not accept it. The Committee requests the Government to take steps with a view to reinstating these trade union leaders (Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González) in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.

The Committee's recommendations

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

(a) Observing that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality), the Committee:

concludes that the legislation seriously infringes the principles of freedom of association;
regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in the process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador S.A. de C.V.; and
regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union;
urges the Government to take measures with a view to amending the legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate.

(b) The Committee requests the Government to take steps with a view to reinstating the trade unions leaders Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.

Case No. 1927

Definitive 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

118. The Committee examined this case at its meeting in November 1997 and presented an interim report [see the 308th Report of the Committee, paras. 541-555, approved by the Governing Body at its 270th Session (November 1997)].

119. The Government sent new observations in communications dated 10 March and 10 November 1998.

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

A. Previous examination of the case

121. At its meeting in November 1997, the Committee formulated the following conclusions and recommendations on the allegations that remained pending [see the 308th Report, paras. 550-554]:

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.

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.

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.

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.

Finally, regarding the dismissal of Mr. Eladio Peréz 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 Peréz 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.

B. The Government's observations

122. In its communication of 10 March 1998, the Government provides a copy of the wage review agreement which is part of the collective labour agreement concluded on 6 June 1997 between the Grupo Roche Syntex de México S.A. de C.V. enterprise and the Trade Union of Workers of the Roche Syntex Group and ratified by the Federal Conciliation and Arbitration Board. The provisions of the agreement in question are as follows:

First. The parties recognize mutually and reciprocally their respective legal status granted under the present agreement in respect of all the legal effects of said agreement and any others that may apply.

Second. The enterprise hereby increases the daily wage rates for unionized workers who provide services at the pharmaceutical plant situated on the Mexico City-Toluca Highway, No. 2822, suburb Lomas de Bezares, division Miguel Hidalgo, Federal District, and that the agreement shall cover members of the Trade Union of Workers of the Roche Syntex Group (24 per cent of the total workforce) retroactively from the first day of June 1997.

Third. The enterprise undertakes to comply with and respect the terms of this collective agreement in its entirety and in all its detailed provisions, without prejudice to any possible revisions of said collective agreement.

Fourth. The trade union acknowledges that the company by virtue of its various activities and plants is entitled to enter into various collective labour agreements in areas, plants and localities distinct from those covered by the present collective agreement, and that it is specifically the pharmaceuticals plant situated on the Mexico City-Toluca Highway, No. 2822, suburb Lomas de Bezares, division Miguel Hidalgo, Federal District, employing 157 workers, to which this agreement refers.

Fifth. By virtue of the preceding provisions, the trade union withdraws its claims and its declaration of strike action addressed to the company on 28 April 1997.

Sixth. The parties undertake to ratify the present agreement before the federal Conciliation and Arbitration Board (dossier No. III-2298/97) and to apply for official approval of the agreement as not containing any provisions contrary to morals, law and good conduct, the agreement being subject to examination by the Board in all its parts as a binding award equivalent to a matter adjudged.

The parties, having read the present agreement and being aware of its contents and legal scope, have declared their full and unreserved approval of the same and sign it as the expression of their respective wishes.

123. In its communication of 10 November 1998, the Government states that any potential disputes between the Trade Union of Workers of the Roche Syntex Group and the "Justo Sierra" Progressive Trade Union never materialized, since the latter on 27 May 1997 terminated the collective agreement which it had concluded with the company (the collective agreement reproduced in the preceding paragraph and signed by the Trade Union of Workers of the Roche Syntex Group dates from 6 June 1997).

124. As regards the reasons for the dismissals of 19 officials of the Trade Union of Workers of the Roche Syntex Group and their allegedly anti-union nature, the Government states that to its knowledge, the company decided to eliminate the storage, stocks, packing, loading and delivery departments. The workers and the union opposed this move, while the company proposed to suppress posts in accordance with the law. The Labour and Social Security Secretariat promoted and participated in conciliation meetings aimed at bringing the parties together, without any positive results. These facts suggest that failure to reach an agreement on the suppression of posts was the reason for the dismissal of the workers, who retained the right as individuals to put forward claims before the Federal Conciliation and Arbitration Board on grounds of unjustified dismissal by the company. The reasons for the dismissals were therefore not anti-union in nature but based on a failure by the parties to reach an agreement. Furthermore, not all the workers involved were trade union officials, and those who were retained their trade union posts until 3 June 1997, when new elections were held for the union's executive. The trade union posts were preserved, since section 376, paragraph 2 of the Federal Labour Act provides that "Members of the union executive who are dismissed by the employer or who resign for reasons attributable to the employer shall continue to exercise their functions ...".

125. With regard to the allegations of threats of dismissal by the company to force workers to leave the complainant organization and join the "Justo Sierra" Progressive Trade Union, the Government states that there has unquestionably been a misinterpretation of the information supplied in its previous reply, since the potential dispute with the "Justo Sierra" Progressive Trade Union never materialized as a result of the decision by that union and the company to end collective labour relations, as has already been indicated. It follows that the alleged threats of dismissal by the company to force workers of the Trade Union of Workers of the Roche Syntex Group to join the "Justo Sierra" Progressive Trade Union did not take place.

126. As regards the reasons for the dismissal of Mr. Eladio Peréz Rubí, the Government states that he was not in fact dismissed but resigned from his position in the company on 27 June 1997. According to Mr. Rubí's own letter (a copy of which is supplied by the Government), he resigned of his own accord and in his own interests. As a result of his resignation and in accordance with the Federal Labour Act, he received a settlement from the company with which he was entirely satisfied and waived any further claims.

C. The Committee's conclusions

127. In the present case, the complainant organization (the Trade Union of Workers of the Roche Syntex Group) had alleged that the Grupo Roche Syntex de México S.A. de C.V. enterprise negotiated a collective agreement for all the workers with a minority trade union, namely, the "Justo Sierra" Progressive Trade Union of Service Workers of the Mexican Republic (SPJSTS), that 19 anti-union dismissals of trade union officials and members took place as well as the dismissal of the trade union official Mr. Eladio Peréz Rubí, and that there were threats to dismiss workers at the company to force them to leave the complainant organization.

128. The Committee observes that the collective labour agreement concluded between the Grupo Roche Syntex de México S.A. de C.V. and the "Justo Sierra" Progressive Trade Union (which according to the complainant organization was a minority union) was concluded on 4 March 1997 [see the 308th Report, para. 543]. The Committee takes note of the Government's statement that this collective agreement was terminated on 27 May 1997 and that the complainant organization (the Trade Union of Workers of the Roche Syntex Group) and the company signed a wage review agreement on 6 June 1997 which was ratified before the Federal Conciliation and Arbitration Board; under the terms of that agreement, provision is made for an increase in wages and the trade union (the complainant organization in the present case) withdraws its claims and its declaration of strike action. The Committee also notes that according to the Government, no dispute between the complainant union and the "Justo Sierra" Progressive Trade Union ever materialized, since the latter and the company together decided to end their collective relations, so that, according to the Government, it follows that there were no threats of dismissal by the company to force any workers to join the "Justo Sierra" Progressive Trade Union. This being the case, since the parties involved have resolved the complaints initially made concerning the conclusion of a collective agreement with a minority trade union, the Committee will not proceed with the examination of these allegations.

129. As regards the alleged anti-union dismissal of 19 persons who were officials or members of the complainant organization (the Trade Union of Workers of the Roche Syntex Group), the Committee notes the Government's statement that: (1) the reasons which gave rise to the dismissals were not anti-union in character but were connected with the company's decision to eliminate the storage, stocks, packing, loading and delivery departments; (2) the dismissals could in any case be referred to the Federal Conciliation and Arbitration Board; (3) not all the persons dismissed were trade union officials, and those who were, kept their trade union posts until new elections were held for the union executive on 3 June 1997. Under these circumstances, the Committee will not proceed with the examination of these allegations.

130. As regards the alleged dismissal of union official Mr. Eladio Peréz Rubí, the Committee notes the Government's statement that he was not dismissed but resigned from his position in the company on 27 June 1997 and waived any further claims. The Committee has taken note of Mr. Rubí's letter (a copy of which was supplied by the Government) confirming these statements.

The Committee's recommendation

131. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Case No. 1967

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

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

Allegations: Refusal by the authorities to recognize the
affiliation of a federation to a trade union central

132. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 20 May 1998. The Government sent observations in a letter of 29 October 1998.

133. Panama 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

134. In its communication dated 20 May 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that the Government of Panama has refused to recognize, and disregards the affiliation of, the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central; this is in breach of the Labour Code and other national laws as well as of ILO Convention No. 87 which, under no circumstances, empower the administrative authorities to refuse registration of a workers' federation with a central labour organization.

135. The ICFTU seeks the repeal of resolution No. 042-DOS-97 of 29 April 1997, which contains a decision not to register FENASEP's application for affiliation to the Joint Trade Union Central. The text of the resolution reads as follows:

The Chief of the Labour Organizations Department, acting on behalf of the Directorate General of Labour,

Considering:

That, on 18 March 1997, the Joint Trade Union Central requested this Department to register as an affiliate member the National Federation of Associations and Organizations of Public Servants (FENASEP);

That private sector workers and their organizations are governed by the Labour Code whereas public servants and their associations are governed by the Administrative Code, with the exception of cases foreseen in specific laws;

That, following an examination of the documentation submitted, the fact was noted that it did not meet the requirements of the Labour Code whereas specific standards exist which govern separately associations of public servants and workers' trade union organizations;

Resolves:

One Article: Not to register the application by the National Federation of Associations and Organizations of Public Servants (FENASEP) for affiliation to the Joint Trade Union Central, given that it does not meet the requirements of the Labour Code.

In accordance with: Article 2, 351 and 376 of the Labour Code.

David Tejada,
Chief of the Labour
Organizations Department.

B. The Government's reply

136. In its letter of 29 October 1998, the Government recalls that the complaint results from the fact that the Ministry of Labour did not accept the "affiliation of the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central". This ensues from resolution No. 042-DOS-97 of 28 July 1997, issued by the Chief of the Labour Organizations Department of the Ministry and which was endorsed by resolution No. D.M. 27/98 of 14 May 1998, issued by the Senior Authorities. As stated in the latter text, notwithstanding "awareness of public sector employees' interest in being able to establish a trade union ... it is, for the time being, impossible on legal grounds to accede to this request". Article 2 of the existing Labour Code makes it absolutely clear, in explicit and emphatic terms, that "public servants shall be governed by the standards applicable to careers in the public administration, unless provision is explicitly made for them to be included within the scope of application of any rule contained in this Code". In fact, however, the Code contains no provision making explicit reference to an entitlement for public servants to establish a trade union, as would be required by article 2. Hence, it is not possible to accept the establishment by the aforementioned public servants of a trade union, without the rule of law being undermined.

137. The Government states that the above-mentioned has not constituted an obstacle to the exercise of freedom of association by public servants, so much so that FENASEP is a federation and, as such, brings together a large number of associations of public servants working in various ministries and decentralized bodies. In this connection, the term "unionization" is not the subject of detailed definition in ILO Convention No. 87 whereas the concept "organization" is defined, inter alia, in Article 10 as "any organization of workers or of employers for furthering and defending the interests of workers or of employers". Furthermore, Article 6 of Convention No. 98 stipulates that "this Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way". It follows from the aforementioned that, although the full right to organize of civil servants or public employees is recognized, there is no obligation to permit them to organize as a trade union on a par with those envisaged by the pertinent labour legislation. Clearly, this does not prevent each State, in exercise of its sovereignty, from granting its public servants the right to establish trade unions, a matter which, as seen above, does not arise in the Republic of Panama.

138. The National Constitution of Panama, in article 300, establishes several "occupations in the public service in accordance with the principles of a system of merit; these include the Career in Public Administration; the structure and organization of these occupations shall be established by law in conformity with the exigencies of the Public Administration". By virtue of this text, Act No. 9 was adopted on 20 June 1994, entitled: "The establishment and regulation of Careers in the Public Administration"; article 174 stipulates:

Public servants pursuing a career in the public administration shall be entitled to establish or join public servants' associations of a socio-cultural and economic nature; these are set up within their respective institutions and strive to promote the education, training, improvement of conditions and protection of their members as well as to advise them regarding matters before the Appeals and Conciliation Board of Servants of the Public Administration and before the General Management of the relevant body. There shall be no more than one association in each institution.

The title of each public servants' association shall identify the institution that it represents or to which it pertains.

Membership of, or disaffiliation from, the above-mentioned associations shall be regulated by the Directorate General of the Public Administration for the purpose of ensuring that they take place on a voluntary and verifiable basis.

139. Other provisions make reference to the establishment of associations, their recognition as well as the right to join together in federations and confederations. A chapter also exists regarding "the Settlement of Collective Disputes" which gives implicit recognition of the right to strike. Consequently, freedom of association, the right to bargain (art. 180) and even to strike (art. 185) are recognized.

140. The Government adds that Act No. 12, 10 February 1998, "structures the Career in Parliamentary Service". It contains a specific section on "Collective Relations" which authorizes public servants pursuing a Career in Parliamentary Service "to establish and join a public servants' association of a socio-cultural and economic nature, which strives to promote the education, training, improvement of conditions, protection and defence of the common economic and social interests of its members ..." (article 80); two members of its management, together with their alternates, are granted "special protection (amparo) for a period of up to one year after they have ceased to exercise their functions. Consequently, they shall not be dismissed without the prior authorization of the Parliamentary Service Careers Board, on justifiable grounds as provided for by law. Any dismissal ordered in non-conformity with this article constitutes a breach of the special protection and shall result in an entitlement to immediate reinstatement of the public servant dismissed in violation of this provision ... A breach of the special protection is also constituted by unilateral measures to modify working conditions or to transfer the career official to another administrative unit unrelated to his/her functions; or by situations in which a transfer impedes or complicates the exercise of his/her trade union duties and the prior authorization of the Parliamentary Service Careers Board would also be necessary for such transfer" (article 181). Is it not appropriate to consider this as trade union privilege (fuero)? Moreover, "Parliamentary Service officials are recognized the right to bargain collectively regarding disputes as well as aspects of the public service regulations, with the exception of aspects explicitly excluded by law" (article 82). This clearly refers to the right to bargain collectively.

141. These rights were incorporated into resolution No. 31 of 11 June 1998, passed by the Legislative Assembly and by which that body "approves the entirety of the Regulations governing Human Resource Administration of the Legislative Assembly" but, furthermore, it was established that the "institution shall grant facilities in the form of premises, equipment, materials and supplies for the smooth running of the Association ..." (article 121); special protection is extended "to the principal representatives, and their alternates, of public servants before the Parliamentary Service Careers Board" (article 122); "under normal conditions, no restrictions shall be placed upon the freedom of association of Parliamentary Service officials or upon officials enjoying the special protection (amparo) provided for by these Regulations" (article 128); public servants are granted the right to "protection, consideration, defence and advance of their common economic and social interests" and "to bargain collectively regarding disputes as well as aspects of the public service regulations, except aspects explicitly excluded by law" (article 240, Nos. 6 and 7).

142. Above and beyond this, the Government reports that when, pursuant to the Torrijos-Carter Treaties, the Balboa and Cristóbal railway and ports reverted to the Republic of Panama, laws were adopted which granted the relevant workers the right to join trade unions, independently of their status as public employees (Acts Nos. 38 and 39, 27 September 1979). Similarly, a special Act (No. 8, 25 February 1975) was adopted authorizing workers in the energy and telephone services, who are also public employees, to join trade unions. In a globalization policy context, such services are today being privatized and the State has engaged in collective bargaining with each of the relevant trade unions, it being stipulated that the collective agreement shall extend to the purchaser of these utilities (Act No. 5, 9 February 1995, regarding the telephone services, and Act No. 6, 3 February 1997, in respect of electricity utilities).

143. Hence, the Government continues, whereas it has not been possible to legislate to extend unionization standards to all public servants, the State has, nevertheless, endeavoured to grant such rights to certain categories of public officials, despite the fact that Convention No. 98 "does not deal with the position of public servants engaged in the administration of the State".

144. The Government concludes that it has not been, nor shall it be, government policy to disregard its obligations pursuant to Conventions Nos. 87 and 98 and, on the contrary, it has gone beyond the requirements of the latter instruments.

C. The Committee's conclusions

145. The Committee observes that, in the present complaint, the complainant organization alleges that the authorities refuse to recognize the affiliation of the National Federation of Associations and Organizations of Public Servants (FENASEP) to the Joint Trade Union Central, pursuant to Ministry of Labour resolution No. 042-DOS-97 of 28 July (endorsed by the resolution issued by the Senior Authorities on 14 May 1998).

146. The Committee also notes the Government's statement that public servants and employees may organize themselves in associations for the protection and defence of their members' interests (though not as trade unions, other than in certain cases explicitly provided for by legislation). According to the Government, public servants' associations enjoy the basic rights established by ILO Conventions Nos. 87 and 98, including the right to bargain collectively and to take strike action. Nevertheless, the Government indicates that public servants are governed by the law applicable to careers in the public administration and not by the Labour Code; on legal grounds, it is impossible for FENASEP to become affiliated to the Joint Trade Union Central. Moreover, in the Government's opinion, Article 6 of Convention No. 98 ("this Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way") permits States to grant or not to grant to their public employees the right to join trade unions.

147. In this respect, the Committee wishes to recall that the establishment of federations and confederations falls within the scope of Convention No. 87 and not Convention No. 98; Convention No. 87 (which applies to all workers with the sole possible exception of the armed forces and the police (Article 9(1) and consequently, applies to public servants) states explicitly in Article 5 that "workers' and employers' organizations shall have the right to establish and join federations and confederations ...". Furthermore, Article 6 of Convention No. 87 reads: "The provisions of Articles 2, 3 and 4 hereof apply to federations and confederations of workers' and employers' organizations" and Article 2 of Convention No. 87 specifically provides for the right without previous authorization, freely to join organizations, subject only to the rules of the organizations concerned. Consequently, organizations of public servants should be able to affiliate, if they so choose, to federations or confederations of workers in the private sector if the rules of such organizations so permit.

148. In this regard, the Committee has made reference on previous occasions to the opinion of the Committee of Experts on the Application of Conventions and Recommendations, according to which it seems difficult to reconcile with Article 5 of Convention No. 87 a provision of law prohibiting organizations of public officials from adhering to federations or confederations of industrial or agricultural organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 615]. In addition, at its November 1997 meeting and in connection with its examination of the application of Convention No. 87, the Committee of Experts addressed a direct request to the Government of Panama, calling upon it to take measures to amend its legislation if the texts did not permit public servants' organizations to adhere to other federation-level organizations which had not been set up for public servants.

149. In these circumstances, the Committee requests the Government to recognize and register, without delay, the affiliation of FENASEP to the Joint Trade Union Central and to keep the Committee informed of developments; it also brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

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

(a) Recalling that Article 5 of Convention No. 87 explicitly states that workers' and employers' organizations shall have the right to establish and join federations and confederations, the Committee requests the Government to recognize and register, without delay, the affiliation of FENASEP to the Joint Trade Union Central and to keep the Committee informed of developments.

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

Case No. 1880

Interim report

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

Allegations: Various acts of anti-union discrimination
and interference, obstruction of collective bargaining

151. The Committee examined this case at its November 1997 and June 1998 meetings and presented interim reports on both occasions to the Governing Body [see 308th and 310th Reports, paras. 577-596 and 517-544, approved by the Governing Body at its 270th (November 1997) and 272nd (June 1998) Sessions, respectively].

152. The Government sent new observations in a communication dated 13 October 1998.

153. 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. Previous examination of the case

154. At the November 1997 meeting of the Committee, certain allegations remained pending concerning various acts of discrimination and interference by the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company, Electro Sur Este S.A. and Electro Sur S.A. enterprise, as well as the obstruction of collective bargaining by the Electro Ucayali S.A. enterprise.

155. At its last examination of the case, the Committee formulated the following recommendations [see 310th Report, para. 544]:

(a) Concerning the allegations of anti-union discrimination and interference in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise, the Committee regrets the fact that the Government has not sent precise observations, neither has it carried out an investigation, and is merely relying on the existence of legislation against acts of anti-union discrimination and the possibility that the victims have of lodging judicial appeals, and once again urges the Government to carry out an investigation without delay into the allegations and to take the necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.

(b) The Committee hopes to receive from the Government, without delay, the texts of all the collective agreements concluded in the Electro Ucayali S.A. enterprise and requests it to transmit them as a matter of urgency.

(c) Concerning the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur S.A. enterprise), the Committee urges the Government to carry out an in-depth investigation and to keep it informed thereof.

(d) Concerning the suspension of the trade union allowance paid to trade union leader Mr. Guillermo Barrueta Gómez since 30 June 1992 by the Electro Sur Este S.A. enterprise, the Committee requests the Government to keep it informed regarding the outcome of the appeal in this matter lodged by the Electro Sur Este S.A.

(e) The Committee requests the Government to ensure that all cases of anti-union discrimination -- including those presented to the Committee -- may be examined through expeditious and effective procedures.

B. The Government's reply

156. In its communication dated 13 October 1998, the Government states that it agrees with the Committee's observations to the effect that in ratifying Convention No. 98, the State of Peru 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. It likewise agrees with the Committee that this protection must be guaranteed not only in law but also in practice. The Government therefore reiterates its previous observations, pointing out that there is legislation in Peru against acts of anti-union discrimination, for example the Political Constitution of the State, the Penal Code, the Collective Labour Relations Act (Legislative Decree No. 25593) and the Regulations made under it approved by Presidential Decree No. 011-92-TR. The latter two legislative texts are currently being revised with a view to adjusting them more closely and more effectively to the international conventions and treaties to which Peru is a party.

157. Notwithstanding the above, the Government states it should be pointed out that section 4 of the Collective Labour Relations Act, Legislative Decree No. 35593, lays down protection of freedom of association as follows: "The State, employers and the representatives of both shall refrain from committing any acts limiting, restricting or impairing in any way the workers' right to organize, and from interfering in any way in the establishment, administration or maintenance of the trade union organizations set up by the latter." Moreover, under various legislative texts, the Government guarantees that legal persons who consider that their rights have been infringed can take legal action to assert their labour rights.

158. As regards the investigation into acts of anti-union discrimination and interference as requested by the Committee, the Government points out that only the judiciary is competent to comment on the proceedings under way, and therefore any interference by the Government would infringe the judges' independence and autonomy in carrying out their jurisdictional function. Nonetheless, it will inform the Committee of the outcome of these proceedings in due course.

159. The Government states that collective agreements have been concluded between the Electro Ucayali S.A. enterprise and the Ucayali S.A. branch of the Light and Power Workers' Union for 1996-97 and 1997-98; a collective agreement has also been concluded between Electrocentro S.A. and the Federation of Peruvian Light and Power Workers for 1995-96, which is applicable to the workers employed by Electro Ucayali S.A.

160. Concerning the dismissal of trade union officer Mr. Walter Linares Sanz, the Government states that, according to the procedure followed by the Electro Sur S.A. enterprise, this dismissal had been due to serious misconduct on the part of the worker concerned. Under section 32 of the Collective Labour Relations Act, Legislative Decree No. 25593, trade union immunity guarantees that certain workers may not be dismissed or transferred to other establishments at the same enterprise without just cause being duly demonstrated or without the workers' consent. In this case there was just cause for the dismissal, i.e. grave misconduct consisting of failure of the worker to discharge his duties at work, giving false information to the employer and serious breach of discipline. The dismissal was therefore in order, even if the worker was a trade union officer and enjoyed trade union immunity. Verifying whether the accusations on which the Electro S.A. enterprise based its dismissal were true or false, however, is solely and exclusively a matter for the judiciary. In this case judicial proceedings have been instituted and have not yet been concluded. Therefore, as the internal procedures have not been exhausted, the complainant can hardly expect to take the Committee and the Peruvian Government by surprise with its allegations of violations of trade union rights without any support for them.

161. Concerning the case of the suspension of the allowance of trade union officer Mr. Guillermo Barrueta Gómez, the judiciary has not yet handed down a final decision on the appeal for annulment that has been lodged. The Government will accordingly transmit the results to the Committee once the Supreme Court of Justice of the Republic has taken a decision.

162. The Government points out that it is clear from the above that it observes Convention No. 98 of the International Labour Organization and that at no time has it attempted to obstruct the exercise of the right to organize and collective bargaining.

C. The Committee's conclusions

163. The Committee observes that the questions which remained pending in this case concern various acts of anti-union discrimination and interference by the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company, Electro Sur Este S.A. and Electro Sur S.A. enterprises, as well as the obstruction of collective bargaining by the Electro Ucayali S.A. enterprise.

164. Concerning the alleged acts of anti-union discrimination and interference, the Committee notes that the Government's reply does not add anything to that sent for the first examination of the case, apart from stating that, given the fact that only the judiciary is competent to comment on proceedings that are under way, any interference on the part of the Government (referring to the possibility of an administrative investigation) would infringe the independence and autonomy of the jurisdictional function. The Committee reminds the Government that the allegations in question date back to 1997 and notes that it has not given specific information concerning any judicial proceedings which might have been instituted. In these circumstances, the Committee can only reiterate its previous conclusions, reproduced below [see 310th Report, paras. 537-539]:

The Committee observes that the following allegations relating to acts of anti-union discrimination remained pending at its previous meeting:

various acts of anti-union discrimination 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, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch;
the Electro Ucayali S.A. enterprise making the granting of open-ended contracts of employment conditional on workers belonging to the Ucayali S.A. branch of the Light and Power Workers' Union giving up their membership;
the transfer of the majority of workers belonging to the above trade union to places other than those specified in their contracts of employment, under the control of the Electrocentro S.A. enterprise;
hostility towards and obstruction of trade union activity, interference in the internal affairs of the above-mentioned union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements;
the collective dismissal of 19 unionized workers and coercion by the Ucayali S.A. enterprise of workers to give up their union membership, threatening to include them in the collective dismissal if they refuse (as a result, recognition of the trade union was cancelled as the number of members was reduced to fewer than 20, the legal minimum);
unfair dismissal of trade union officer Mr. Jaime Tuesta Linares by the Eastern Regional Public Electricity Supply Company;
a systematic campaign of threatened dismissal and harassment against trade union officers and unionized workers in the Electro Sur Este S.A. enterprise, which has caused serious problems for the workers' union branch in Electro Sur Este Abancay; specifically: (1) trade union officer Mr. Moisés Zegarra Ancalla was transferred; (2) the Electro Sur Este S.A. enterprise (Puno subregion) threatened trade union officer Mr. Adriel Villafuerte Collado with dismissal and suspended him for 30 days without pay;
threats of sanctions and dismissals against trade union officers at the Tacna and district branch of the Light and Power Workers' Union by the Electro Sur S.A. company, which considered that the trade union officers were guilty of serious misconduct for not having dropped their action to enforce a court order in favour of the workers concerning salary increments due to 111 workers.

[...] The Committee deeply regrets that the authorities have not carried out an investigation into the allegations and that the Government is again merely relying on the existence of provisions concerning protection of freedom of association and judicial remedies or states that the complainant organizations have not provided sufficient evidence. In this respect, the Committee emphasizes that "the Government is responsible for preventing all acts of anti-union discrimination" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 738]. In addition, the Committee draws the Government's attention to the fact that, where cases of alleged anti-union discrimination are involved, the competent authorities 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]. Moreover, "respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial" [see Digest, op. cit., para. 741]. In these circumstances, the Committee once again urges the Government to carry out an investigation without delay into the allegations of anti-union discrimination in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise and to take all necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.

165. Concerning the information requested on the collective agreements concluded in the Electro Ucayali S.A. enterprise, the Committee notes that three collective agreements have been signed, including one for 1998.

166. As regards the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur S.A. enterprise), the Committee notes that according to the Government, the enterprise cited as reasons for the dismissal serious misconduct consisting of failure to carry out his duties at work, providing false information to the employer and serious breach of discipline, and that the judicial proceedings under way have not been concluded. The Committee requests the Government to send it the decision as soon as it is handed down.

167. Concerning the suspension of the travel allowance for trade union activities of Mr. Guillermo Barrueta Gómez, the Committee notes that the Government will transmit the decision handed down by the Supreme Court of Justice and awaits this decision.

The Committee's recommendations

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

(a) Concerning the allegations of anti-union discrimination and interference in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A. enterprises, the Committee regrets that the Government has not carried out an investigation and is merely relying on the existence of legislation against acts of anti-union discrimination and interference and the possibility that the victims have of lodging judicial appeals, and once again urges the Government to carry out an investigation without delay into the allegations and to take all the necessary measures to remedy these serious acts of anti-union discrimination if they are proven. The Committee requests the Government to keep it informed in this respect.

(b) Concerning the dismissal of trade union officer Mr. Walter Linares Sanz (Electro Sur S.A. enterprise) and the suspension of the trade union allowance paid to trade union officer Mr. Guillermo Barrueta Gómez since 30 June 1992 by the Electro Sur Este S.A. enterprise, the Committee requests the Government to keep it informed regarding the outcome of the proceedings under way.

(c) The Committee once again requests the Government to ensure that all cases of anti-union discrimination -- including those presented to the Committee -- may be examined through expeditious and effective procedures.

Case No. 1906

Definitive 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 (STCCLB)

Allegations: Restrictions to the right to collective bargaining
(construction sector) -- anti-union persecution

169. The Committee examined this case and formulated interim conclusions at its meetings in November 1997 and June 1998 [see the 308th Report of the Committee, paras. 597-609 and the 310th Report, paras. 545-556, approved by the Governing Body at its 270th Session (November 1997) and at its 272nd Session (June 1998) respectively].

170. The Government sent new observations in communications dated 19 November 1998 and 4 February 1999.

171. 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. Previous examination of the case

172. The pending allegations concern sentences of imprisonment of trade union officials and members and a draft bill to amend the Industrial Relations Act. At its meeting in June 1998, the Committee requested the Government to transmit a copy of the judgements concerning the two-year prison sentence imposed by a judicial body on the trade union officers of the Federation of Construction Workers of Peru (FTCCP), José Luis Risco Montalván, Mario Huamán Rivera and Victor Herrera Rubiños, and on 30 other trade unionists. It also requested the Government to provide more information about the "rules of conduct" to which the trade unionists and officers were to be subjected by virtue of the sentence imposed for the crime of endangering public safety as a result of the serious disturbances which had occurred in November 1991 with the motive of mobilizing Congress (the Government had indicated however that the sentence did not give rise to the forcible detention of those sentenced) [see 310th Report, paras. 552 and 553]. The Committee also requested the Government to guarantee that the new draft bill to amend the Industrial Relations Act is fully in conformity with Conventions Nos. 87 and 98, in particular, as concerns the restrictions on collective bargaining raised in this case (construction sector). Finally, the Committee requested the Government to keep it informed of the developments in respect of the status of this draft bill before the Congress. The Committee drew this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations [see 310th Report, para. 555].

B. The Government's reply

173. In its communications of 19 November 1998 and 4 February 1999, the Government states with regard to the sentences imposed on the trade union officials José Luis Risco Montalván, Huamán Rivera and Herrera Rubiños, and on 30 other trade unionists, following the hampering of the free passage of vehicles and persons as well as damage inflicted on these vehicles (the sentences are annexed to the Government's reply) that the case has been definitively closed because of the statute of limitations on criminal matters. Thus, the previous judicial and penal sentences have been revoked and the workers in question have therefore not been punished.

174. As regards the guarantees requested by the Committee to ensure that the new draft bill to amend the Industrial Relations Act is in full conformity with Conventions Nos. 87 and 98, in particular with regard to collective bargaining, the Government reiterates that it is always concerned to comply with the terms of ILO Conventions Nos. 87 and 98 and to ensure that their principles are respected, and has enacted appropriate legislation to guarantee full compliance with those principles. To that end, the Government indicates that any changes to legislation currently in force will take into account the principles embodied in those Conventions, and that it undertakes to keep the Committee informed of any developments in respect of the status before Congress of the draft bill to amend the Industrial Relations Act.

C. The Committee's conclusions

175. The Committee notes the Government's indication that the criminal case relating to trade union officials and members of the Federation of Construction Workers of Peru (FTCCP) has been definitively closed. Furthermore, the Committee notes with interest the willingness of the Government to respect the provisions of Conventions Nos. 87 and 98 in any changes to legislation currently in force, in particular with regard to collective bargaining, and the Government's undertaking to provide information on any developments in respect of the status before Congress of the draft bill to amend the Industrial Relations Act. Under the circumstances the Committee trusts that the draft bill to amend the Industrial Relations Act will be fully in conformity with Conventions Nos. 87 and 98. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the new legislative developments in this case.

The Committee's recommendations

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

(a) The Committee trusts that the draft bill to amend the Industrial Relations Act will be fully in conformity with Conventions Nos. 87 and 98.

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

Case No. 1983

Definitive report

Complaint against the Government of Portugal
presented by
the State Technical Employees' Union (STE)

Allegations: Government interference in the collective
bargaining process and replacing strikers during a strike

177. The complaint of the State Technical Employees' Union (STE) is contained in communications dated 11 and 21 August 1998. The Government sent its observations in communications dated 15 and 21 January 1999.

178. Portugal 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. The complainant's allegations

179. In its communications dated 11 and 21 August 1998, the State Technical Employees' Union (STE) alleges violation of Article 7 of the Labour Relations (Public Service) Convention, 1978 (No. 151), ratified by Portugal. It recalls that this Convention provides that measures shall be taken to 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.

180. The complainant trade union emphasizes that Legislative Decree No. 45/A/84 of 3 February 1984 recognizes in section 5(1) the right of public servants to bargain collectively concerning their conditions of employment.

181. It explains that in this case it represents the Trade Union of Pilots of the National Institute of Port Pilotage, which carries out its duties in several maritime ports in this country, and that in this capacity it has endeavoured to negotiate the conditions of work of pilots for 1998 with the National Institute of Port Pilotage. It put forward proposals on which no negotiations took place owing to the employer institute's systematic refusal. The STE attaches with its complaint a chronological summary of the steps it had taken from December 1997 until the adoption of Order No. 395/98 of 11 July 1998 of the Ministry of Equipments, Planning and Territorial Administration. This Order fixes pilots' remuneration without any genuine negotiations with the trade union having taken place, according to the complainant. The Order, a copy of which is also attached, applies retroactively from 1 January 1998 although, according to the STE, the trade union was not consulted on the draft.

182. The STE alleges further that notice was given of nationwide strikes of port and harbour entrance pilots on 22 May, 10 July and 30 July 1998 for an 11-day strike in June, a seven-day strike in July and a 16-day strike in August, with a minimum service being maintained. The aim of the strikes was to demand the right to participate in the revision of the Organic Act respecting the Institute and to protest against the absence of a satisfactory response to proposals to bargain collectively on conditions of employment for 1998. The National Institute of Port Pilotage and the Government allegedly replaced striking pilots in several instances. According to the STE, the intention was to lessen the impact of the strike and hence impair the workers' rights that are essential to the normal exercise of freedom of association. The STE encloses with its complaint photocopies of documents allegedly proving that striking workers had been replaced between 8 and 25 June 1998.

183. The complainant trade union requests the ILO to urge the National Institute of Port Pilotage and the Government to observe Convention No. 151, Legislative Decree No. 45/A/84 of 3 February on the negotiation of conditions of employment in the public service and Act No. 65/77 of 25 August respecting the right to strike, as well as the Constitution of the Republic of Portugal, which lays down this right and prohibits the replacement of striking workers.

B. The Government's reply

184. In its communications dated 15 and 21 January 1999, the Government provides the following information concerning the first allegation, according to which Order No. 395/98 of 11 July 1998 of the Ministry of Equipment, Planning and Territorial Administration revising the pay scale of pilots of ports and harbour entrances, applicable retroactively from 1 January 1998, had been published without consultation with the trade union and in violation of Convention No. 151 and Legislative Decree No. 45/A/84.

185. According to the Government, the general regulations governing the Port and Harbour Entrance Pilotage Service was laid down by Legislative Decree No. 166/89 of 19 May. The Government states that in this case the collective bargaining process began in December 1997 between the National Institute of Port Pilotage and the State Technical Employees' Union representing part of the port and harbour entrance pilot workforce of this Institute. It explains that at the time the complainant trade union had presented a proposal to update the staff's conditions of employment for 1998. However, contrary to the provisions of section 7 of Legislative Decree No. 45/A/84, there was not the slightest justification for the trade union's proposal to raise pay. Nonetheless, the National Institute accepted it as a basis for negotiation on 2 February 1998 and convened the trade union to a meeting on 13 February 1998. The meeting did not take place as the trade union had not confirmed its attendance, which it acknowledges.

186. In these circumstances, in order to reach a solution by consensus, on 6 March the Institute sent a counterproposal to the complainant trade union taking account of the Institute's budgetary constraints and the percentages laid down for the revision of wages and other financial benefits in a pay agreement signed between the representatives of the Government and the Federation of Trade Unions of the Public Administration, and even the STE (the complainant in this case) for 1998, dated 8 January 1998. The Government encloses a copy of this agreement, which provides for a 2.75 per cent increase in the pay scale for the general regime, special regimes and special corps. According to the Government, the STE did not respond to the counterproposal and the Institute convened a new meeting for 14 April, which was attended by the trade union this time without, however, an agreement being reached.

187. On 6 May 1998 the Institute therefore informed the trade union of the following decisions:

the gradual annual improvement of the grade scale cannot begin in 1998 owing to the most recent revision of the pay scale in the previous year and the Institute's budgetary constraints;
the introduction of a risk allowance will be considered in due course when the Institute has been integrated in the port authorities.

188. The Government specifies that the revision of pay was carried out in accordance with section 53 of Legislative Decree No. 361/78 and section 40 of Annex I, by order of the Minister of Equipment, Planning and Territorial Administration, based on a constant of the 2.75 rate of increase laid down in the 1998 pay agreement which had been signed by the complainant trade union, among others.

189. Concerning the second allegation, according to which the National Institute of Port Pilotage and the Government had replaced striking pilots in several instances, the Government points out that section 6 of Act No. 65/77 of 26 August 1977 respecting the right to strike prohibits employers from replacing striking workers during a strike by persons who were not employed in the establishment or service concerned at the time the strike was announced, and that they may not hire new workers after that date.

190. According to the Government, what Order No. 238/A/97 of 4 April allows is not the replacement of striking workers, but for certain vessels to manoeuvre without using the pilotage service; this authorization was extended a number of times. Under the Order, the movements and manoeuvres described in the general regulations of the port and harbour entrance pilotage service, approved by Legislative Decree No. 166/89 of 19 May, may be freely executed by captains of the merchant marine with recognized experience, whether or not they have a pilot's licence. These merchant marine captains authorized to manoeuvre vessels in accordance with the terms of the Order are not in any way related to the National Institute of Port Pilotage and are not officials, employees or even collaborators of the Institute. Moreover, vessels manoeuvring without having a pilot on board obviously do not have to pay piloting fees since they do not use the pilotage service.

191. The Government concludes that as regards the first point, the right to bargain collectively was not violated during the revision of port and harbour entrance pilots' pay, since it was in fact preceded by a process of negotiation in which the complainant trade union and the Institute participated without, however, reaching an agreement. In the absence of an agreement, the revision was carried out on the basis of the figures laid down in the pay agreement of 1998 concluded between the Government, the Federation of Trade Unions of the Public Administration and the complainant trade union. Concerning the second point, there was no replacement of striking workers, since Order No. 238/A/97, which was extended, in fact made it optional for vessels to use the pilotage service when entering and leaving port, which is entirely different.

C. The Committee's conclusions

192. This complaint of the State Technical Employees' Union (STE) refers to allegations of government interference in the process of collective bargaining, on the one hand, and replacement of striking workers during several strikes, on the other.

193. There are considerable discrepancies between the versions of the complainant trade union and the Government as regards the first allegation. According to the complainant trade union, the Ministry of Equipment, Planning and Territorial Administration, by Order dated 11 July 1998, fixed the remuneration of port and harbour entrance pilots retroactively as of 1 January 1998 without any genuine negotiation with the trade union and without consulting the latter. According to the Government, on the other hand, a 2.75 per cent increase in the pay scales for the general regime, special regimes and special corps was accepted by all of the partners through a written agreement dated 8 January 1998 concerning the updating of wages and other financial benefits for 1998, signed by the Government, the Federation of Trade Unions of the Public Administration and the State Technical Employees' Union (the complainant in this case). As no agreement had been reached in bargaining process concerning port and harbour entrance pilotage, the Government proceeded to update the pay of this special corps by order of the Ministry of Equipment, Planning and Territorial Administration, based on the constants fixed by the 1998 pay agreement.

194. The Committee observes that the complainant trade union had on 8 January 1998 accepted a pay increase of 2.75 per cent for the general regime, special regimes and special corps. In these circumstances, the Committee considers that there has been no violation of freedom of association on this point and that this aspect of the case does not call for further examination.

195. Concerning the second allegation, the observations of the complainant trade union and the Government contradict each other. According to the complainant trade union, the employer and the Government replaced striking workers on several occasions during the strikes held by port and harbour entrance pilots, in order to weaken the trade union movement. According to the Government, on the other hand, the right to strike was respected and strikers were not replaced, in accordance with the legislative provisions on the right to strike laid down in section 6 of Act No. 65/77 of 26 August respecting the right to strike, which prohibits employers from replacing striking workers by persons who were not employed in the establishment or service concerned at the time the strike was announced. However, Order No. 238/A/97 of 4 April, which was prolonged several times, made it possible to authorize experienced captains of the merchant navy to enter and leave ports without a pilot. According to the Government, these captains are not related to the employer, i.e. the National Institute of Port Pilotage, neither are they officials, employees or collaborators of the Institute, and moreover they did not pay a pilotage fee to enter the ports.

196. The Committee notes that Portuguese legislation contains a specific provision prohibiting employers from hiring workers to replace their own employees on strike. Moreover, in the light of the Government's observations, the Committee notes that the Government only authorized experienced captains to enter and leave ports without using the services of the Pilotage Institute. It is not for the Committee to comment on the appropriateness of such a decision, which did not constitute replacement of the striking workforce of the Pilotage Institute.

The Committee's recommendation

197. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Case No. 1959

Interim report

Complaint against the Government of the United Kingdom (Bermuda)
presented by
the Fraternal Unions of Bermuda (FUB)

Allegations: Violations of the rights to organize
and to bargain collectively of managerial staff and
insufficient protection against employer interference

198. In a communication dated 26 March 1998, the Fraternal Unions of Bermuda (FUB) submitted a complaint of violations of freedom of association against the Government of the United Kingdom (Bermuda). The Trades Union Congress (TUC) associated itself with this complaint in a communication dated 2 April 1998.

199. The Government of the United Kingdom transmitted the observations of the Government of Bermuda in a communication dated 22 October 1998 and provided additional information in a letter dated 3 March 1999.

200. The United Kingdom 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), both of which have been declared applicable without modification to Bermuda.

A. The complainant's allegations

201. In its communication dated 26 March 1998, the Fraternal Unions of Bermuda (FUB) alleges that the Government of Bermuda has failed to secure in law and practice the fundamental right to join an independent trade union to middle management employees. The FUB cites in particular the middle management employees of the Bermuda Telephone Company who wish to join the Bermuda Public Services Association (an affiliate of the FUB) but were told by the Company that, pending reorganization, such representation would not be expedient. The FUB also makes reference to the reluctance of the owners of the Southampton Princess Hotel to recognize the Bermuda Industrial Union (BIU -- also a FUB affiliate) despite a workforce vote to be represented by the BIU for collective bargaining purposes, and also refers to the Government's refusal to intervene on behalf of these workers' rights. Finally, the FUB notes that the Government also failed to ensure the recognition of the BIU by Hamilton Val Cleaners, despite a vote by the employees.

202. The FUB further expresses its concern over the Trade Union Amendment Bill (apparently passed by the House in March 1998, but not yet signed into law) which the complainant considers represents a thinly veiled attack on trade union organizations and on collective bargaining by permitting non-union agents provocateurs to challenge recognition of a union and making it possible for employers to intimidate or bribe employees into voting for the decertification of a union after it has been recognized. In an explanatory document attached to its complaint, the FUB expresses its concern that the requirement under section 30C(b) that an application for certification as a bargaining agent must include "a statement of the facts upon which the union relies as showing that 35 per cent or more of the workers in that unit wish to have the union as the exclusive bargaining agent" and that the application shall be served on the employer may lend itself to intimidation. Furthermore, the FUB refers to an amendment which provides the opportunity for any employee in the bargaining unit, regardless of whether they are a union member, to decertify the union and notes that unscrupulous or recalcitrant employers could encourage such activity through intimidation or bribes. Finally, the complainant alleges that the new Act disenfranchises any future managers from seeking union recognition and representation, contrary to Conventions Nos. 87 and 98.

B. The Government's reply

203. In a communication dated 22 October 1998, the United Kingdom Government forwarded the following observations from the Government of Bermuda.

204. The Government of Bermuda first observes that the complaint stems from the alleged failure of the Government to secure in law and practice the fundamental right to join an independent trade union to employees in positions of middle management of the Bermuda Telephone Company.

205. The Government then asserts that the purpose of the Trade Union Amendment Bill 1998 is reflected in the speech of the Minister of Labour, Home Affairs and Public Safety to the Legislative Assembly on 27 February 1998. The Minister referred to the fact that in the past Bermuda's industrial relations have traditionally relied upon a voluntary system in which both parties, the employer and the trade union, agreed to generally accepted set procedures, customs and practices. While this approach has enjoyed success over the years, it has become apparent that some employers have failed to recognize trade unions. Consequently, labour unrest has followed. The amendment Bill provides a legal framework to guarantee the right of workers under the law to choose a particular union to represent them for collective bargaining purposes and for that union to be recognized as such by the employer. The legislation also provides a legal mechanism for derecognition of trade unions where it no longer enjoys the support of the workers. These amendments provide workers with the ability to choose a union to represent their interests and to terminate that arrangement and either be represented by another union or not to be represented at all.

206. According to the Government this amendment in no way impedes the right of employees of any description from organizing to promote their own interests. Moreover, Bermuda's Constitution guarantees the right of association and the freedom of individuals to belong to a trade union.

207. In respect of Convention No. 98, the Government considers that the amendment goes beyond the promotion of voluntary agreements by providing the machinery to force a reluctant employer to negotiate with a union. While the Convention promotes that opportunities be provided for collective bargaining, the legislation in question provides the mechanism to ensure that collective bargaining occurs and in no way violates the letter or spirit of the Convention.

208. The amendment permits certification where a union claims to have 35 per cent of the workers in a proposed bargaining unit. "Bargaining unit" is defined as referring to non-management persons, i.e. persons who are not management persons, the management being a defined term meaning "a person who in the course of his or her employment is responsible for the direction and management of the undertaking or has authority to appoint or dismiss or exercise disciplinary control over workers in the undertaking". The concept of restricting workers in a certified bargaining unit for collective bargaining purposes to non-management persons is not unusual and in fact exists in most countries. Managers are required to train employees, direct their work and correct them when problems arise. In a unionized industry, managers must also represent the interests of the employer in collective bargaining as well as grievances and other day-to-day dealings with labour. It is simply not possible for management to function properly, if managers have a dual loyalty, serving as members of management while at the same time being subject to union rules and regulations.

209. The Government further notes the absence of any reference in the Conventions to compulsory collective bargaining and considers therefore that the definition of "bargaining unit" in respect to persons who may be certified for mandatory collective bargaining purposes cannot possibly violate those Conventions. Middle managers are still free to form organizations to engage in voluntary negotiations with a view to achieving a collective agreement.

210. In summary, the Government of Bermuda considers that the Trade Union Amendment Bill does not conflict with either the letter or the spirit of Conventions Nos. 87 and 98 and, to the contrary, satisfies the rights and principles enshrined in these Conventions. Finally, the Government emphasizes that this Bill represents a major departure from the existing voluntary approach in the labour legislation and is a major step forward in continuing attempts to safeguard the interests of workers.

211. In a communication dated 3 March 1999, the United Kingdom Government indicates that the Bermuda Government has stated that they have referred the matter of the Trade Union Amendment Act to the tripartite Labour Advisory Council which will give full consideration to all the issues raised by the Fraternal Unions of Bermuda in relation to the proposed legislation. The Act will not come into operation until this tripartite consultation has been completed, and any amendments resulting from this process will be incorporated into the legislation by means of an amending Bill. A full report on the progress of these tripartite consultations will be provided in due course.

C. The Committee's conclusions

212. The Committee notes that the allegations in this case concern the failure of the Government to ensure generally the recognition by certain employers of unions duly chosen by employees, as well as the exclusion of middle management from being represented by certified collective bargaining agents under the Trade Union Amendment Bill. The complainant also refers to the possibility under the Bill for employer interference and intimidation in respect of the certification and decertification process of collective bargaining agents.

213. The Committee would first note with interest from the Government's latest communication that the Government of Bermuda has now referred the Trade Union Amendment Act to the tripartite Labour Advisory Council for it to consider fully all the issues raised by the complainant in relation to the proposed legislation. It further notes that the Act is not to come into operation until this tripartite consultation has been completed and any amendments resulting from the tripartite process are to be incorporated in the legislation by means of an amending Bill. It is not clear to the Committee from this latest information whether the Trade Union Amendment Bill has been adopted since the Government's initial reply to the complaint. In any event, the Committee will proceed with its examination of the Bill so as to make known its point of view in respect of the matters raised in the complaint.

214. The Committee regrets, however, that the Government has not supplied any information on the allegations concerning the failure of the Government to secure the rights of middle-management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by the employees in the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners. It requests the Government to provide further information in this respect so that it may examine these allegations in full knowledge of all the facts.

215. The Committee notes that the Government's reply only refers to the question of compulsory recognition of collective bargaining agents and the exclusion of middle management. In this respect, the Committee notes the explanation given by the Government that, until the introduction of this Bill, the labour relations situation in Bermuda functioned according to a voluntary system of recognition for collective bargaining purposes. While such a system had enjoyed some success, some employers failed to recognize trade unions and labour unrest would follow. The Committee notes the Government's indication that the amendment Bill in question was introduced precisely in order to provide a legal framework to guarantee the right of workers to choose a particular union to represent them for collective bargaining purposes and to ensure that such a union would be recognized by the employer.

216. The Committee notes that the amendments provide for a system of compulsory recognition of an exclusive bargaining agent where more than 50 per cent of the workers in the bargaining unit support the union (section 30F(2)). It further notes that a "bargaining unit" is defined under section 30A(2) as "a group of two or more workers (all being non-management persons) in an undertaking, on behalf of whom collective bargaining may take place" and that "management person" is "a person who in the course of his or her employment in an undertaking has authority to appoint or dismiss or exercise disciplinary control over workers in the undertaking". While it is thus clear that management persons may not be represented by the union certified as the exclusive bargaining agent under these amendments, the Committee notes from both the Government's assertion and the absence of any legislative provision to the contrary that middle managers are still free to form organizations to engage in voluntary negotiations with a view to achieving a collective agreement. In other words, the exclusion of management persons only concerns the newly proposed system of compulsory recognition of collective bargaining agents but does not call into question their rights existing hitherto under the voluntary system, nor their right to organize generally as a worker under the Trade Union Act. Finally, the Committee notes that under section 30F unions recognized prior to the entry into force of the amendment Bill shall be certified as the exclusive bargaining agent in respect of the which the agreement designates that union as the exclusive bargaining agent, whether or not that unit includes management persons.

217. As concerns the complainant's allegation that managerial staff have been deprived of their rights to organize and to bargain collectively through their exclusion from the compulsory recognition system established in the amendment Bill, the Committee must first recall that nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization [see Digest of decisions and principles of the Committee on Freedom of Association, 1996, para. 846]. The absence of such a duty, on the other hand, does not mean that, once a system of compulsory recognition is proposed, arbitrary exclusions can be made. As concerns separate representation for management persons more generally, the Committee has already considered that it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to form their own associations to defend their interest and second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [see Digest, para. 231]. It is clear both from the Government's reply and the legislation that managerial staff do, in any event, enjoy the rights to organize and to bargain collectively on behalf of their own occupational interests. As concerns the definition of managerial staff, the Committee considers that limiting such a group to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the second above-mentioned condition. The Committee must raise, however, some concern over the wording of the definition in respect of the exercise of disciplinary control over workers which, taken by itself, could give rise to an expansive interpretation, excluding large numbers of workers from the negotiating scope of a certified bargaining agent to the eventual detriment both of the interests of the workers concerned and the negotiating power of the CBA. In this respect, the Committee requests the Government to take the necessary measures to ensure that the exclusion of managerial staff from the Trade Union Amendment Bill, in its final form, is not drafted in such a way as to permit a broad exclusion of workers who do not genuinely represent the interests of employers from being represented by a certified collective bargaining agent.

218. As concerns the remaining complaints in respect of the amendment Bill concerning employer intimidation and interference, the Committee first notes that an application by a worker in a bargaining unit for cancellation of certification must be accompanied by evidence that 35 per cent or more of the workers in that unit no longer support the union and is subsequently subjected to a ballot (section 30P). Furthermore, the Committee notes that section 30I concerning protection of voting in ballot makes it an offence to threaten or intimidate any person in order to induce or compel them to vote or refrain from voting, subject to a fine or imprisonment. Noting the Government's most recent indication that the amendment Bill will not come into force until the position of the FUB has been considered by the Labour Advisory Council, the Committee requests the Government to keep it informed of any amendments which may be made to further protect against any eventual employer intimidation or interference in respect of the procedures for union certification or decertification.

The Committee's recommendations

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

(a) As concerns the exclusion of managerial staff from the Trade Union Amendment Bill, the Committee requests the Government to take the necessary measures to ensure that, in its final form, this Bill is not drafted in such a way as to permit a broad exclusion of workers who do not genuinely represent the interests of employers from being represented by a certified collective bargaining agent.

(b) The Committee requests the Government to provide information in reply to the allegations of Government failure to secure the rights of middle- management employees to join independent trade unions and its refusal to intervene to ensure employer recognition for collective bargaining purposes of the unions duly chosen by the employees of the Bermuda Telephone Company, Southampton Princess Hotel and Hamilton Val Cleaners.

(c) The Committee requests the Government to keep it informed of any amendments which may be made following the review by the Labour Advisory Council of the Trade Union Amendment Bill to further protect against any eventual employer intimidation or interference in respect of the procedures for union certification or decertification.

Case No. 1977

report in which the committee requests
to be kept informed of developments

Complaint against the Government of Togo
presented by
the Force ouvrière togolaise (FOT)

Allegations: Violations of the right to establish organizations
without previous authorization

220. On 18 July 1998, the Force ouvrière togolaise (FOT) submitted a complaint of violation of trade union rights against the Government of Togo.

221. The Government supplied its observations in a communication dated 21 October 1998.

222. Togo 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

223. The Force ouvrière togolaise (FOT) states that on 5 April 1995, in accordance with the relevant legislation, its by-laws were filed at the Office of the Attorney-General, with the General Directorate of Labour and Social Legislation and at Lomé City Hall. The FOT recalls that under section 5 of Ordinance No. 16 of 8 May 1974 issuing the Labour Code ("the Labour Code"), a trade union whose by-laws have been duly filed comes into existence in legal terms three months after the date of filing; the FOT maintains that it, therefore, has existed legally since 7 July 1995.

224. The complainant adds that its recognition by the authorities was never in any doubt during its first year of existence; it supports its claims with various items of correspondence and documents which show among other things that between May 1995 and December 1996 it was involved in a number of activities organized by the Government and other organizations for the promotion and defence of human rights.

225. The complainant maintains, however, that the situation changed in 1996; since that time, the organization has been subjected to persecution by the authorities -- in particular because of its protests concerning the appointment of Workers' delegates to the 83rd Session of the International Labour Conference in June 1996 -- and has no longer been involved in various activities at the national level on the grounds that it has no official confirmation that its by-laws have been filed.

226. Despite writing to the Minister of the Interior and Decentralization in September 1995 in order to obtain the official confirmation provided for in the law, the FOT has still received no reply. The FOT considers that the Government's attitude violates its international obligations with regard to freedom of association.

B. The Government's reply

227. In its reply, the Government addresses the issues of the legal existence of the complainant, its non-involvement in various activities at national level and the persecution which it claims to have suffered from the authorities.

228. As regards the legal existence of the FOT, the Government maintains that it has no true legal existence owing to the circumstances in which the organization's constituent congress took place. The Government explains that only 12 activists were present at the opening ceremony of the constituent congress and only seven at the closing ceremony. Furthermore, neither the national executive nor the report on which the work of the congress was based were presented to the Minister's representative on that occasion. For these reasons, the Government is surprised that the complainant, which does not carry out any grass-roots activities, should have protested at the appointment of Workers' delegates to the 83rd Session of the International Labour Conference in June 1996.

229. However, in view of the fact that the complainant complies with the provisions of section 5 of the Labour Code, the Government states that the authorities have agreed to collaborate with it. It was on this basis that the different communications which the complainant has used to support its complaint were addressed to it.

230. The Government denies failing to meet its international obligations with regard to freedom of association and maintains that if the complainant considers that it has problems, these are connected, not with its legal existence or failure to obtain an official receipt for its by-laws, but with its well-known inability to organize any activities or training or awareness-raising seminars for its members.

231. As regards the non-involvement of the FOT in various national-level activities since 1995, the Government points out the discrepancies between the complainant's allegation in this respect and the correspondence that took place between May 1995 and December 1996, which was attached to the complaint. The Government states that throughout 1996, which coincided with the period during which the General Secretary of the FOT was removed from the public sphere, the FOT retreated behind a wall of silence which made it difficult to believe that it still existed.

232. Lastly, with regard to the persecution which is said to have been suffered by the complainant and its leaders, the Government considers that this allegation is without foundation and the complainant has provided no evidence to support it.

233. The Government concludes by pointing out that it respects the provisions of the freedom of association Conventions which it has ratified and reaffirms its commitment to complying with them, and states that the General Secretary of the FOT should refrain from blaming the Government for the results of its own failings.

C. The Committee's conclusions

234. The Committee notes that the allegations contained in the complaint refer in particular to the right of workers and employers to establish organizations without previous authorization or interference by the public authorities (Article 2 of Convention No. 87 ratified by Togo).

235. The Committee notes that under the relevant provisions of the Togo Labour Code, trade unions can be established freely for purposes of study and defence of the economic, industrial, commercial, agricultural and occupational interests of persons engaged in the same occupation, or in similar or related occupations (see Labour Code, sections 3 and 4).

236. As regards the formal requirements which must be observed by trade union organizations at the time of their establishment, section 5 of the Labour Code provides that "under penalty of annulment, the founders of any trade union shall file the union's by-laws and the names of those responsible in one capacity or another for administering or leading the union". The provision states further that "the by-laws shall be filed in quadruplicate at the City Hall or at the headquarters of the administrative district where the union in question is established, and one copy of the by-laws shall be sent to the labour and social legislation inspector and one copy to the Attorney-General". A receipt is to be issued not later than three months thereafter. Once that period has elapsed, the union is considered to have a legal existence (end of section 5).

237. The Committee recalls that it has always considered that the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the provisions of the freedom of association Conventions provided, of course, that the provisions in question do not impair the guarantees laid down in those Conventions [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 247].

238. More specifically, these formalities must not be used by the public authorities in such a way as to hinder the legitimate activities of a duly constituted trade union organization; this would amount to authorizing interference by the public authorities in the activities of trade unions and would not be compatible with the principles of freedom of association. In other words, these prescriptions and formalities must not amount in practice to previous authorization, nor constitute an obstacle to the establishment of an organization to the extent that it is tantamount to a prohibition pure and simple [see Digest, op. cit., paras. 249 and 259]. Moreover, the Committee notes that, according to the Government, neither the national executive board of the FOT nor the report on which the work of the constituent congress of this organization was based were presented to the Government representative when the congress took place. The Committee recalls that such requirements, in order to be in conformity with the above-mentioned principles of freedom of association, must constitute merely a formality to ensure that those rules are made public.

239. The Committee notes that the complainant appears a priori to have complied with the formal requirements which must be met if an organization is to have any claim to lawful existence under Togolese law. Furthermore, the Committee notes that the complainant is said to have been involved in various activities organized by the Government in 1995 and 1996, including participation in the tripartite negotiations which were held in May 1995 between the Government, the National Employers' Council (Conseil national du patronat) and the unions.

240. If the formal requirements laid down for the establishment of a trade union are satisfied, the trade union thus established must be able to carry on its legitimate activities without interference by the public authorities, in particular with regard to the manner in which its meetings are held.

241. In addition, the Committee takes note of the Government's observations concerning the complainant's representativeness. While the Committee does not have the information needed to assess the representativeness of the complainant, it is bound to point out that the right to form trade union organizations freely and the recognition of a given union's representative status according to objective, predetermined and precise criteria are two separate issues; moreover, recognition of the representative status of certain unions for the purpose of granting varying privileges and advantages must not result in the de facto prohibition of other trade union organizations which do not meet those criteria, thus depriving workers of their fundamental right to establish or join organizations of their own choosing.

242. Under these circumstances, the Committee requests the Government to take all necessary measures to ensure that lawfully constituted Togolese trade unions, including the complainant, can carry on their trade union activities without previous authorization or interference by the public authorities and that, in accordance with section 5 of the Labour Code, the receipt for the filing of the complainant's by-laws is issued. The Committee requests the Government to keep it informed of any measures taken in this regard.

The Committee's recommendation

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

The Committee requests the Government to take all necessary measures to ensure that lawfully constituted Togolese trade unions, including the complainant, can carry on their trade union activities without previous authorization or interference by the public authorities and that, in accordance with section 5 of the Labour Code, the receipt for the filing of the complainant's by-laws is issued. The Committee requests the Government to keep it informed of any measures taken in this regard.

Case No. 1981

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

Complaint against the Government of Turkey
presented by
the Bütün Belediye Memurlari Birlii Sendikasi (BEM-BIR-SEN)

Allegations: Restrictions on the right to bargain
collectively of public servants

244. In a communication dated 11 August 1998, the Bütün Belediye Memurlari Birlii Sendikasi -- All Municipalities Public Servants' Trade Union (BEM-BIR-SEN) presented a complaint of violations of freedom of association against the Government of Turkey. It submitted new allegations in a communication dated 25 September 1998.

245. The Government furnished its observations in communications dated 23 and 26 November 1998.

246. Turkey 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

247. In its complaint dated 11 August 1998, BEM-BIR-SEN states that it is active in the local government branch of industry and represents the salaried staff having the status of public servants and contract personnel in local government institutions. It contends that the Government hampered its collective bargaining activities and impeded the implementation of already concluded collective agreements thereby violating Convention No. 98.

248. BEM-BIR-SEN then proceeds to explain the background to its complaint. It indicates that it was established on 10 January 1994 and currently has a membership of 32,000. It is also affiliated with the Confederation of Public Servants' Trade Unions (MEMUR-SEN), an umbrella organization established in 1995. It stresses that the Government is obligated through various domestic and international legal instruments -- including ILO Conventions Nos. 87 and 98, the Turkish Constitution and the Public Servants' Act No. 657 -- to allow public servants' unions the right to carry out their activities freely in order to defend the interests of their members. However, the Government has in the past made it very difficult for public servants to organize and bargain collectively and has imposed various restrictions on organizations of public servants, including BEM-BIR-SEN. Moreover, the Government continues to violate its domestic and international obligations as illustrated by the decision of the Conference Committee on the Application of Standards in June 1998 to discuss the case of Turkey for its non-observance of Convention No. 98.

249. Despite these serious obstacles, BEM-BIR-SEN points out that there have been some developments concerning the rights of public servants' unions although these are still very limited. BEM-BIR-SEN itself has been able to organize in several municipalities with whom 26 "Social Balance Agreements" (SBA), have been concluded following collective negotiations. These SBAs which grant economic and social rights to union members are comparable to collective bargaining agreements but are referred to as SBAs in order to overcome obstacles put in the way of public servants' unions by the Government which still does not grant these organizations an explicit right to bargain collectively.

250. BEM-BIR-SEN contends that a concrete example of the Government's attitude is reflected in the Ministry of the Interior's decision to prohibit the implementation of the SBA concluded between the employer (Elazi Municipality) and BEM-BIR-SEN and which entered into force on 15 January 1998 (a copy of this SBA is attached to the complaint). Pursuant to investigations carried out by inspectors from the Ministry of the Interior, the latter concluded that payments made to BEM-BIR-SEN members pursuant to the SBA were in violation of domestic legislation and would have to be paid back. BEM-BIR-SEN asserts that in the inspection report the inspectors state that "it is not possible for a municipality to sign a contract with a trade union to make extra payments which are not specified in the Public Servants' Act No. 657". The inspectors conclude that since the salaries of public servants are regulated by this law, "public servants cannot obtain extra payments and benefits outside their salaries for their duties ..." and that pursuant to the SBA "... some extra wages were paid unlawfully to the staff of the Bus and Water Administration of the Municipality of Elazi" (a copy of the inspection report is attached to the complaint).

251. The report accordingly concludes that the payments made should be given back to the municipality. BEM-BIR-SEN indicates that for the re-collection of these payments, the Ministry of the Interior has forwarded the necessary orders to the employer, and the Elazi governorship has been entrusted with the task of implementing this process. Apart from these actions, a penal investigation has been initiated by the Ministry of the Interior against the Mayor of the Elazi Municipality for having concluded this collective agreement as an employer. BEM-BIR-SEN asserts that all these practices constitute a violation of the right to bargain collectively.

252. In its subsequent communication dated 25 September 1998, BEM-BIR-SEN alleges that the Ministry of the Interior has once again prevented the implementation of an SBA concluded recently between the employer (Suluova Municipality) and BEM-BIR-SEN pursuant to investigations carried out by inspectors from the Ministry (a copy of the relevant SBA as well as the inspection report is attached to the communication by BEM-BIR-SEN).

B. The Government's reply

253. In its initial reply of 23 November 1998, the Government states that following Turkey's ratification of Convention No. 151 concerning the protection of the right to organize and procedures for determining conditions of employment in the public service in 1993, the relevant provisions of the Constitution were amended in 1995 by Act No. 4121 so as to recognize the right to organize and collective bargaining of public servants as a constitutional right. Article 53 of the Constitution, as amended by Act No. 4121, reads as follows:

Workers and employers have the right to conclude collective labour agreements in order to regulate reciprocally their economic and social position and conditions of work.

The procedure to be followed in concluding collective labour agreements shall be regulated by law.

The unions and their higher organizations, which may be established by the public employees mentioned in the first paragraph of article 128 and which do not fall under the scope of the first and second paragraphs of this article and also article 54, may appeal to judicial authorities on behalf of their members and may negotiate collectively with the administration in line with their objectives. If an agreement is reached as a result of collective negotiations, the text of the agreement shall be drawn up and signed by the parties. Such text shall be presented to the Council of Ministers so that administrative and legislative arrangements can be made. If such a text cannot be concluded by collective negotiations, the agreed and disagreed points shall also be submitted for the consideration of the Council of Ministers by the relevant parties. The regulations for the execution of this article shall be stipulated by law.

More than one collective labour agreement at the same workplace for the same period shall not be concluded and put into effect.

254. The Government explains that in line with the aforementioned constitutional amendment of 1995, the Public Servants' Act No. 657 was also amended in 1997 so as to allow public servants to form and join their unions and higher level organizations in accordance with the principles set forth in the Constitution and pertinent legislation. As the final phase of the endeavours to bring the legislation into conformity with the provisions of the relevant international labour standards, the Government submitted a draft bill concerning public servants' unions to the Grand National Assembly for its enactment. The draft bill has been debated extensively in the Assembly and half of its proposed articles have been approved. However, due to the demands of the opposition parties and some public servants' unions, legislative process is pending for the re-evaluation and revision of some of the remaining articles, hence leaving the public servants' unions without a legal framework in which to conduct negotiations and to conclude agreements with the administration. Nevertheless, to facilitate the functioning of the public servants' unions, the Office of the Prime Minister issued a circular dated 20 November 1997, information on which was given in Turkey's previous report on Convention No. 98 under article 22 of the ILO Constitution.

255. The Government points out that public servants in Turkey organized themselves into unions and confederations even before the constitutional amendment of 1995 as was the case with the establishment of BEM-BIR-SEN (All Municipalities Public Servants' Union trade union affiliated to the Confederation of MEMUR-SEN, which is one of the three confederations of public servants' unions). Given the aforementioned legislative and administrative arrangements and efforts shown to that end, the allegations made against the Government questioning its good faith are misguided.

256. The Government concludes that since negotiations and agreements between the public servants' unions and the administration (including local administrations) involve budgetary, legal and administrative arrangements to be made, procedures for the functioning of such unions and regulations governing their relations with the administration should first be legislated. Although such a legal framework is lacking, the Government does not interfere with the collective agreements reached as was indicated by the existence of 26 agreements between BEM-BIR-SEN and municipalities so long as they do not entail payments not stipulated in annual budgets or in the framework legislation such as the Public Servants' Act No. 657/1965. However, in this case, the collective agreement contains provisions of payments which have no legal basis and no budgetary allocation.

257. In its second communication dated 26 November 1998, the Government refers to the allegation that the Ministry of the Interior prevented the implementation of the Social Balance Agreement (SBA) concluded between the Municipality of Suluova and BEM-BIR-SEN through investigations of the said Ministry's inspectors. The Government contends that BEM-BIR-SEN encloses the original inspection report together with its incorrect and misleading translation. According to the Government, the 59th paragraph of the inspection report recalls that section 146 of the Public Servants' Act No. 657 contains the following provision: "Public servants cannot be remunerated for the duties given by law, statutes, regulations and their superiors save the rights as provided by this Act. No advantage can be granted". The report states that, under the provision of this section, the payments listed there above have no legal basis; it adds that, aware of this, the accountant's office secured at the time of payments written contracts with all the officials who received such payments to the effect that if the payments were considered as personal debts, they would be paid back.

258. In fact, the inspection report does not make any statement on, or question the validity of, the SBA concluded between the Municipality of Suluova and BEM-BIR-SEN. Contrary to its translation as provided by BEM-BIR-SEN, the original text of the 59th paragraph of the report, also provided by the said organization, does not contain the following sentences or any similar statement: "According to the State Public Servants' Law No. 657, the social and economic payments of the municipalities to their officers are also mentioned and some explanation of their regulation is given. It is not possible for a municipality to sign a contract with a trade union and to make some extra payments". In addition, it does not order the prevention of the SBA's implementation.

C. The Committee's conclusions

259. The Committee notes that the allegations in this case concern restrictions on the right of organizations of public servants to bargain collectively through government intervention resulting in the non-implementation of previously concluded collective agreements or "Social Balance Agreements" (SBAs).

260. Although the complainant (BEM-BIR-SEN) has concluded SBAs with 26 different municipalities, it alleges that the Government has impeded the implementation of two of these SBAs despite the conclusion of these agreements between BEM-BIR-SEN on the one hand and the Municipalities of Elazi and Suluova on the other hand. The Government, for its part, contends that although a legal framework -- within which public servants' unions can conduct negotiations and conclude agreements with the administration -- is lacking, it does not interfere with already concluded collective agreements so long as they do not entail payments not stipulated in the Public Servants' Act No. 657/1965 or in annual budgets.

261. The Government points out, however, that with regard to the two cases at hand, the SBAs concerned contain provisions of payments which have no legal basis and no budgetary allocation. The Committee notes therefore the implicit acknowledgement in the Government's reply that the extra wages paid to the staff of the Bus and Water Administration of the Municipality of Elazi as well as to the staff of the Bus Administration of Suluova Municipality have to be paid back to the municipalities concerned, as alleged by BEM-BIR-SEN and as attested to by the respective inspection reports. Moreover, although the Government contests the translation of the contents of the inspection report on the SBA concluded between the Municipality of Suluova and BEM-BIR-SEN, the Committee notes that this is somewhat in contradiction with the Government's non-refutal of the translation of the first inspection report on the SBA concluded between Elazi Municipality and BEM-BIR-SEN, which has the same contents as the second one.

262. The Committee is therefore led to understand that one of the reasons why the Government, through the intermediary of inspectors from the Ministry of the Interior, would not allow the two above-mentioned SBAs to be implemented is that the extra wages stipulated therein for the staff of the two municipalities concerned are not provided for by law, namely the Public Servants' Act No. 657.

263. In this respect, the Committee is bound to remind the Government that 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 of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 793]. In view of the fact that the staff of the Elazi and Suluova Municipalities -- in this case staff of the Bus and Water Administration -- cannot be considered as public servants engaged in the administration of the State, legislation should not constitute an obstacle to the collective bargaining rights of the above-mentioned public servants. In these circumstances, the Committee considers that in preventing the implementation of the SBAs freely entered into by BEM-BIR-SEN and the Elazi and Suluova Municipalities, respectively, the Government violated the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98.

264. The Government further states that it has submitted a draft bill concerning public servants' unions to the Grand National Assembly. Half of this draft bill's proposed articles have been approved and when enacted it would provide a legal framework in which public servants' unions may conduct negotiations and conclude agreements. The Government nevertheless indicates that the legislative process is pending due to conflicting demands of the opposition parties and some public servants' unions. In this respect, the Committee also notes the information given by the Government in its reports on Conventions Nos. 98 and 151 under article 22 of the ILO Constitution that although the draft bill concerning public servants' unions was initially submitted to Parliament on 14 March 1994, there has been considerable delay with regard to the adoption of this bill due to the various changes in government that have taken place since 1994. In the light of the above factors, the Committee considers that the possibility cannot be ruled out that the bill concerning the trade union and collective bargaining rights of public servants may not be enacted for a considerable period of time. In the interim, public servants' unions cannot be expected to wait till the enactment of this bill to exercise their right to bargain freely their terms and conditions of employment in the public service, a right which is guaranteed for public service workers who are not engaged in the administration of the State by Article 4 of Convention No. 98, ratified by Turkey in 1952. While the Government also maintains that there was no budgetary allocation to make the extra payments to the public servants concerned, the Committee is of the view that it is the employer's responsibility -- in this instance, the Elazi and Suluova Municipalities -- to make that determination. Since both these employers decided, in their respective SBAs, to grant extra payments to their employees, the Committee considers that the decision by the Government to alter the contents of those SBAs which were freely entered into, and already negotiated by the parties was in violation of the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners.

265. For all the above-mentioned reasons, the Committee regrets that the Government did not give priority to collective bargaining as a means of determining the employment conditions of the public servants employed in the Elazi and Suluova Municipalities; it would request the Government to refrain from having recourse to measures of intervention in the collective bargaining process and its outcome in the future for these categories of workers.

266. Accordingly, the Committee requests the Government to ensure that the employees are not obliged to return the extra payments that were provided for in the SBAs concluded between BEM-BIR-SEN and the Elazi and Suluova Municipalities. It requests the Government to keep it informed of developments in this regard.

267. Finally, noting that a penal investigation has been initiated by the Ministry of the Interior against the Mayor of the Municipality of Elazi for having concluded the collective agreement as an employer, the Committee would insist that the Mayor not be penalized for having exercised collective bargaining rights under Convention No. 98. It therefore requests the Government to stop forthwith the penal investigation initiated by the Ministry of Interior.

268. 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 to the application of Convention No. 98.

The Committee's recommendations

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

(a) Regretting that the Government did not give priority to collective bargaining as a means of determining the employment conditions of the public servants employed in the Elazi and Suluova Municipalities, the Committee requests the Government to refrain from having recourse to similar measures of intervention in the collective bargaining process and its outcome in the future for these categories of employees.

(b) The Committee requests the Government to ensure that the employees are not obliged to return the extra payments that were provided for in the Social Balance Agreements (SBAs) concluded between the complainant (BEM-BIR-SEN) and the Elazi and Suluova Municipalities and to withdraw the orders made to the employer by the Ministry of the Interior. It requests the Government to keep it informed of developments in this regard.

(c) The Committee requests the Government to stop forthwith the penal investigation initiated by the Ministry of the Interior against the Mayor of the Municipality of Elazi for having concluded the SBA as an employer.

(d) 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 to the application of Convention No. 98.

Case No. 1812

report in which the committee requests
to be kept informed of developments

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

Allegations: Employer interference in the
establishment of a trade union

270. The Committee examined this case at its meetings in March 1996, July 1997 and March 1998 and submitted the following interim reports to the Governing Body [see 302nd Report, paras. 519 to 534; 307th Report, paras. 471 to 479; and 309th Report, paras. 387 to 403, approved by the Governing Body at its 265th Session (March 1996), 269th Session (June 1997) and 271st Session (March 1998)].

271. The Government sent new observations in a communication dated 4 November 1998.

272. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

273. In the present complaint, the complainant organization previously criticized the registration of a trade union (SINATRAINCORACTEL) which had been approved very quickly by the authorities in 1994 despite certain anomalies, and argued that there already existed a trade union at the radio broadcasting company CORAVEN-RCTV, namely, the Occupational Trade Union of Radio, Theatre, Cinema, Television and Allied Workers of the Federal District and State of Miranda (SRTVA), and that the public company in question supported the establishment of the new trade union through various anti-union actions (presence of company representatives at the constituent meeting of the new union, threats of dismissal against workers who did not join the new union, negotiation of a collective agreement with the new union, the old one still in force being cancelled by the company, etc.). According to the complainant, there was no constituent meeting as such and the members of the union executive belonged to the old union [see 309th Report, para. 400].

274. The Government states that: (1) once the new union was established, the meeting to elect the executive board was attended by 319 workers; (2) freedom of association in this case was manifested by trade union pluralism which is protected by law; (3) the new trade union fulfilled all legal criteria; (4) the new union was not registered in record time but rather within the time-limit laid down by legislation; (5) the fact that the new union had leaders from the union committee already in existence is irrelevant; (6) as regards the existence of collective conditions already in force, it is the responsibility of the Directorate of the National Labour Inspection Service to oversee the principle of inviolability of collective agreements; (7) this situation concerns a dispute among members of a union which gave rise to the establishment of a new union [see 309th Report, para. 401]. At the same time, the Government had indicated that the complainant organization (SRTVA) had on 20 July 1996 lodged an appeal (the text of which was attached) before the Supreme Court which had not yet given a ruling. According to the documents supplied by the Government, the appeal lodged by the SRTVA was ruled to be admissible on 5 May 1997 by the Supreme Court of Justice which asked the Minister of Labour to submit a report on the matter.

275. At its meeting in March 1998, the Committee made the following recommendation [see 309th Report, para. 403]:

Noting that the Government's declarations and the allegations are contradictory with regard to the legality of the registration of the new union and that the Government's reply does not deal with the alleged presence of representatives of the enterprise at the constituent meeting for the new union, neither does it deal with the allegation concerning the threat of dismissal against workers who did not join the new union, the Committee requests the Government to send its comments concerning these allegations so that it may examine this complaint in full knowledge of the facts.

B. The Government's reply

276. In its communication of 4 November 1998, the Government reiterates that registration of the trade union SINATRAINCORACTEL was confirmed in accordance with the requirements of the Organic Labour Law. The allegation made by the complainant, that the decision to register the union SINATRAINCORACTEL was taken with excessive haste in only 15 days, is unfounded, since section 425 of the Organic Labour Law expressly states that the competent administrative authority shall register the proposed trade union organization within a period of 30 days following the application, and it is therefore entirely possible -- and indeed plausible -- for registration to take place before the expiry of the period specified by the provision in question. If that has occurred in response to an application in accordance with the law, it does not constitute an act of anti-union interference, as the complainant organization claims.

277. The Government adds that the administrative ruling by which agreement was given for registration of the trade union organization in question is an administrative act and, as such, can be contested in the courts by anyone who considers his or her rights to have been infringed by that act.

278. The Government explains that it has deliberately refrained from expressing an opinion regarding the allegation made by the complainant organization concerning the presence of representatives of the enterprise at the constituent meeting of the new union on the grounds that an opinion or pronouncement on the matter would constitute real interference by the administrative labour authorities in a union's internal affairs. Any complaint regarding the presence of representatives of the enterprise at the constituent meeting of the new trade union will have to be made through a challenge to the relevant minutes of the constituent meeting which of necessity must be done through a court of law.

279. The Government indicates that it cannot enter into considerations of the internal constitution of trade union organizations, since these are autonomous legal entities which can establish their own rules of membership, something which is essential to freedom of association.

280. As regards the allegation of the complainant organization concerning the threat to dismiss workers who did not join the new union, this is also a complaint that does not come within the competence of the national executive authority. It should be noted that the allegation relates to a presumed threat which, if it is found to have taken place, could constitute conduct detrimental to freedom of association. Since the threat is a declaration regarding a possible future occurrence, it is for the courts alone to determine whether it constitutes an act of interference by the employer in the establishment of a trade union organization.

281. Lastly, the Government emphasizes that Venezuelan law provides mechanisms which ensure legal protection for freedom of association and avert any impending injury which might be caused by an apparently detrimental act of the kind alleged by the complainant organization, in accordance with legislation in force. This includes the possibility of initiating an action to obtain constitutional protection to prevent implementation of acts of the type referred to.

C. The Committee's conclusions

282. The Committee notes that the Government in its reply neither confirms nor denies the presence of representatives of the company CORAVEN-RCTV at the constituent meeting of the new trade union SINATRAINCORACTEL, nor does it confirm or deny the alleged threat to dismiss workers who did not join the new union. Instead, it confines itself to stating that there are mechanisms and remedies available to the other union (SRTVA). The Committee requests the Government to carry out an investigation into these allegations and to keep it informed as soon as possible of the outcome thereof.

283. Taking into account the foregoing considerations, and given that the Government in its successive replies has maintained that the present case concerns an internal dispute in a trade union which gave rise to the establishment of another union with a membership of 319 workers, the Committee considers it necessary to have the ruling of the Supreme Court of Justice on this matter. It requests the Government to send it the text of the decision handed down in this regard.

The Committee's recommendations

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

(a) The Committee requests the Government to carry out an investigation on the allegations concerning the presence of representatives of the company CORAVEN-RCTV at the constituent meeting of the new trade union SINATRAINCORACTEL, and the alleged threat to dismiss workers who did not join the new union, and to keep it informed as soon as possible of the outcome thereof.

(b) Considering it necessary to have the ruling of the Supreme Court of Justice on the matter that has given rise to the present complaint, the Committee requests the Government to send it a text of this ruling.

Case No. 1952

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

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: Acts of anti-union discrimination and
intimidation against trade unionists
in the fire-fighting service

285. The Committee examined this case at its meeting in May-June 1998 and presented an interim report to the Governing Body [see 310th Report, paras. 591 to 608, approved by the Governing Body at its 272nd Session in June 1998].

286. Subsequently, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) sent new allegations in a communication of 6 October 1998. The Government sent its observations in a communication dated 4 November 1998.

287. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

288. In the previous examination of the case, the following allegations presented by the complainant remained pending: (1) the dismissal of several trade union officials of their organization (in the fire-fighting sector), namely Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and of a significant number of union members, as well as the transfer of another union official (Ignacio Díaz); and (2) the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before two prefectures under penalty of imprisonment.

289. The Committee, having examined the Government's observations, made the following recommendations [see 310th Report, para. 608]:

(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.

(b) The Committee requests the Government to guarantee the legal status of the complainant organization as a trade union organization.

(c) The Committee requests the Government to guarantee the reinstatement in their posts of the trade union officials belonging to the complainant organization who were dismissed or transferred, at least until the judicial authority has handed down its decision in this matter.

(d) The Committee requests the Government to send its observations concerning the alleged arbitrary dismissal of various members of the complainant organization.

(e) The Committee requests the Government to respond to the allegation that, on 14 and 20 August 1997, the trade union executives Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District under penalty of imprisonment.

B. New allegations of the complainant organization

290. In its communication of 6 October 1998, the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) states that the acts of anti-union discrimination against trade union officials which had been alleged (and which dated back to July 1997) have not been remedied, since as a result of inactivity and procedural delays the Ninth Labour Court of First Instance of the Metropolitan Area of Caracas has given no definitive ruling in the matter (confining itself instead to provisionally suspending the order of the administrative authorities to reinstate the union officials in their posts), although the Supreme Court recently stated in a similar case that the ordinary labour regulations, and therefore also trade union freedoms and guarantees in accordance with the Organic Labour Law, apply to the workers of the Eastern Fire Brigade Association, and despite the fact that the Permanent Commission on Social Affairs of the Chamber of Deputies issued a report in July 1996 in which it correctly interpreted the scope and significance of the decision of the Committee on Freedom of Association in the present case.

291. As regards the dismissals of SINPROBOM members, the proceedings initiated before the Ministry of Labour (reinstatement and payment of salaries) have not been finally settled by the labour inspector, although they have been in progress for more than 15 months; according to legislation, a decision should have been given within 21 working days, and what now exists is a situation of denial of justice.

292. At the same time, the complainant alleges that on 1 October 1998, the Chief of Operations of the Eastern Fire Brigade Association called in police when union officials Tomás Arencibia and Glácido Gutiérrez were present, in order to prevent them from doing their work.

C. The Government's reply

293. In its communication of 4 November 1998, the Government states that it bears no responsibility for the alleged violations, since they involve the actions of other branches of state authority (the judiciary and the municipal and regional executive authorities) which are autonomous and, under Venezuelan law, not liable to interference from the Government. Nevertheless, the Government confirms that to date, it, through the Ministry of Labour, has recognized the legal status of the trade union SINPROBOM and the trade union rights claimed by it, through the administrative proceedings recognized by the complainant. It is striking that SINPROBOM has persisted in pursuing its claims and sought -- successfully -- to win recognition of those claims at the administrative level, knowing the constraints imposed by legislation on the actions of the administration. On the other hand, although a number of effective and legally recognized means are available for bringing an action before the courts (for example, action to obtain constitutional protection), the organization in question has confined itself to presenting a complaint of violations of trade union rights to the ILO.

294. With regard to the suspension of the effect of the administrative precautionary measure adopted by the labour inspector, who ordered the reinstatement of the union officials, the Government states that the labour court judge in the case acted on a request from representatives of the Eastern Fire Brigade Association who believed that their rights had been infringed by the labour inspector's decision. Judicial review of the labour inspector's decision is recognized by law, inasmuch as that decision is an administrative act and as such can be overruled by decision of a court. This provides a safeguard against arbitrary or unlawful action by the administrative authority. This safeguard provided by the law cannot automatically give way to provisions which exist to protect freedom of association; both deserve appropriate protection.

295. The Government adds that the suspension of the effects of the labour inspector's administrative decision is a precautionary measure requested by one of the parties and adopted by the judge to avert the risks related to a final ruling finding that the administrative decision was without foundation. It is assumed that in the present case, the judge, acting in an autonomous capacity (in which the national executive may not interfere without encroaching on the competence of a different branch of the public authority), was obliged to assess the legality of the preventive measure before agreeing to it and accordingly suspended the effect of the administrative decision. All this is recognized by law, and, whatever the Government's opinion in the matter, such a judicial ruling must be respected and cannot be contravened on the pretext of ensuring the reinstatement of SINPROBOM executives as ordered by an administrative department of the executive branch. The case will be finally settled by the courts.

296. On the other hand, the Government indicates that, in the face of the alleged arbitrary dismissals of some workers belonging to the union, the workers concerned can make use of various administrative or legal remedies in order to re-establish the legal situation which had been infringed, if they are responding to anti-union discrimination. The Ministry of Labour will be attentive to any petition that might be received and will take action within the limits of its procedures and competence. As regards the alleged delays caused by a number of labour officials with regard to the dismissals of union members, the necessary instructions have been given to clarify the facts and, where necessary, to take appropriate corrective measures.

297. As regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez under penalty of imprisonment, the Government states that, in the absence of any detailed information from the complainant concerning the circumstances, it can only say that the law provides sufficient safeguards to ensure that no citizen can be arbitrarily deprived of his or her liberty. The Government will be attentive to this situation, although no such violation -- deprivation of liberty of the officials referred to -- has occurred.

D. The Committee's conclusions

298. The Committee notes that the pending allegations refer to: (1) the dismissal of various trade union officials from their organization (in the fire-fighting sector), namely Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and of a significant number of union members, as well as the transfer of another union official (Ignacio Díaz); (2) the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before the two prefectures under penalty of imprisonment; and (3) the request for the presence of police by officials of the Eastern Fire Brigade Association at a time when SINPROBOM officials were present at the Association's headquarters. The Committee notes the Government's statement to the effect that it has recognized the unions's legal status and the trade union rights to which it lays claim.

299. As regards the dismissals and acts of discrimination against officials of the union SINPROBOM, the Committee notes the Government's statement to the effect that the judicial authority is autonomous and the Government therefore cannot interfere in its activities, that the judicial authority in question temporarily suspended the order issued by the administrative authority to reinstate the trade union officials, and that the case will be resolved by the judicial authority. As regards the dismissals of SINPROBOM members, the Committee notes that the Government states that the workers concerned can make use of a number of administrative and legal remedies and that the delays which some labour officials are alleged to have caused have given rise to instructions to clarify the facts and, if necessary, to take corrective measures.

300. As regards the Government's statement that the judiciary branch is autonomous and its decisions cannot be interfered with by the executive branch without encroaching upon the mandate of another public authority, the Committee considers that it is certainly important that a judicial authority be able to judge cases concerning dismissals and the question of their illegality. It considers however that it is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities.

301. In the light of this information, and taking into account the fact that the measures taken against trade unionists are based on an interpretation of the law that excludes fire-fighters from the right to organize and collective bargaining [see 310th Report, paras. 596 and 605], the Committee can only repeat its previous conclusions to the effect that the trade union officials who were dismissed or transferred in July 1997 should be reinstated in their former posts [see 310th Report, para. 606], and regret that the judicial authority has still not given a ruling on the matter and has provisionally suspended the administrative decision to reinstate the officials in question. The Committee also regrets that the Ministry of Labour has still not given a decision on the alleged anti-union dismissal of members of SINPROBOM, although these date back to 1997. Under these circumstances, the Committee once again requests the Government, as it did during its previous examination of the case, to take the necessary measures and initiatives to ensure the reinstatement of the union officials of the complainant organization who were dismissed or transferred, and that of the union members who were dismissed, and to keep it informed of any decision or ruling that may be handed down in the matter. The Committee recalls that "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders 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 (revised) edition, 1996, para. 749].

302. Lastly, as regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before a prefecture and the request for a police presence by the Eastern Fire Brigade Association at a time when the union officials in question were present at the Association's headquarters, the Committee notes the Government's statement to the effect that the complainant has not described the precise circumstances in which the two union officials were summoned and that they were not in any case deprived of their liberty. The Committee also notes that the Government has not referred to the presence of police requested by the Eastern Fire Brigade Association when the two officials in question were present at the Association's headquarters. In this regard, the Committee requests the Government to carry out an investigation into these allegations and, if acts of intimidation or anti-union measures are found to have taken place, to take the necessary measures to prevent any recurrence of such practices and punish those responsible.

The Committee's recommendations

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

(a) The Committee once again requests the Government to ensure the reinstatement in their posts of the union officials and members of the complainant organization who were dismissed or transferred, and to keep it informed of any decision or ruling that may be handed down in the matter. Taking into account the fact that such measures date back to 1997, the Committee recalls the principle according to which "cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned".

(b) As regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before a prefecture and the request for a police presence by the Eastern Fire Brigade Association when the union officials in question were at the Association's headquarters, the Committee requests the Government to carry out an investigation into these allegations and, if acts of intimidation or anti-union measures are found to have taken place, to take the necessary measures to prevent any recurrence of such practices and punish those responsible.

Geneva, 17 March 1999.

Points for decision:

Paragraph 76;
Paragraph 84;
Paragraph 117;
Paragraph 131;
Paragraph 150;
Paragraph 168;
Paragraph 176;
Paragraph 197;
Paragraph 219;
Paragraph 243;
Paragraph 269;
Paragraph 284;
Paragraph 303.

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