Informe provisional - Informe núm. 60, 1962

1. 212. The complaint of the I.C.F.T.U is contained in a communication addressed directly to the International Labour Organisation on 4 October 1961. The Government forwarded its observations on the complaint by a communication dated 12 November 1961, received by the Director-General of the International Labour Office on 24 November 1961. By a communication dated 10 November 1961 the I.C.F.T.U furnished further information in support of its complaint. The Government furnished its observations on this second communication from the complainants by a letter dated 15 January 1962.
2. 213. One of the allegations in the I.C.F.T.U's complaint related to the arrest on 10 September 1961 of Mr. Salem Shita, General Secretary of the General Union of Libyan Workers (U.G.T.L). As Mr. Shita had been convened, as a substitute Workers' member, to attend the 150th Session (November 1961) of the Governing Body of the International Labour Office, and was unable to attend by reason of the fact that he was in prison, the Workers' group raised the matter in the Governing Body. After the exchange of certain telegrams between the Government of Libya and the Director-General of the I.L.O, the observations of the Government dated 12 November 1961 were received on 24 November 1961, the last day of the 150th Session of the Governing Body. The letter by which the Government forwarded these observations contained an invitation to the I.L.O to send two representatives to visit Libya in order to acquaint themselves " with all the data pertaining to the subject ". Having informed the Governing Body of this invitation, the Director-General informed the Government, in a telegram dated 24 November 1961, that he was considering the matter.
3. 214. Arrangements were then made to send an I.L.O representative to Libya, in accordance with the invitation of the Government. Lord Forster of Harraby, K.B.E, Q.C, former President of the Industrial Court of the United Kingdom and a member of the I.L.O. Fact-Finding and Conciliation Commission on Freedom of Association, accompanied by an official of the International Labour Office, arrived in Libya on the evening of 5 January 1962, returning from that country on the morning of 10 January 1962. The Committee has seen the text of the report of the I.L.O representative and has found the factual evidence obtained by that representative on the spot of great value in its examination of the allegations made.
4. 215. Libya 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).

Allegations relating to Measures Taken against Trade Union Leaders Following a Strike in 1961

1. 216. It is alleged by the I.C.F.T.U in its communication dated 4 October 1961 that at the beginning of September 1961, following on a general increase in the salaries of public officials in view of the rise in the cost of living, workers and salaried employees in private employment demanded an increase in their own minimum rates of pay. Thereupon, the government of Tripolitania, according to law, convened an Advisory Board, consisting of employers' and workers' representatives in equal numbers meeting under the chairmanship of a government representative. The complainants allege that the Board unanimously recommended increases in minimum rates ranging from 20 per cent for the lowest paid employees to 8 per cent for the highest paid ones, but that the provincial government accepted only the recommendation concerning the lowest-paid categories. The unions, it is alleged, gave statutory notice of their intention to call a strike, at the same time demanding a resumption of negotiations, to which no positive answer was given.
2. 217. Immediately after the general strike began, it is alleged, the government of Tripolitania took repressive measures against the trade union leaders and the strikers, Mr. Salem Shita, General Secretary of the U.G.T.L and a substitute Worker member of the Governing Body of the International Labour Office, being arrested on 10 September 1961, " without charge ", together with about 20 other union leaders. At the same time, according to the complainants, the offices of the U.G.T.L were occupied by the army, and the provincial authorities exercised pressure on the strikers, both as individuals and collectively. The complainants contend that the strike was called in accordance with the legislation in force at the time and that the measures taken by the authorities were a breach of the legislation.
3. 218. In its communication dated 10 November 1961 the I.C.F.T.U alleges that Mr. Shita and Mr. Ali Bitar, editor of the U.G.T.L newspaper, who had been arrested on 10 September 1961 together with Mr. Shita, were still in prison, although no charges had been made, while 18 other arrested union leaders had been released provisionally on 24 September 1961 and were due to be brought to trial on 21 November 1961. The allegations relating to Mr. Bitar are considered separately in the present report (see paragraphs 236 to 243 below).
4. 219. Prior to the receipt of any observations from the Government on the complaint, the particular case of Mr. Shita was raised in the Governing Body of the International Labour Office, as indicated in paragraph 213 above, by reason of the fact that his arrest had pre vented his attending the 150th Session of the Governing Body in his capacity as a substitute Worker member. That was on 21 November 1961, at the beginning of the session, the Government's observations on the complaint, although dated 12 November 1961, not having been received until 24 November 1961, the last day of the session.
5. 220. In its communication dated 12 November 1961 the Government, besides inviting the I.L.O to send two representatives to Libya, as mentioned in paragraph 213 above, furnishes its observations on the various matters alleged in the I.C.F.T.U's complaint dated 4 October 1961.
6. 221. The Government declares that on 31 July 1961 the Tripolitanian Advisory Board on Wages recommended, firstly, that the minimum wage rate of adult workers be raised to 42 piastres and that of under-age workers to 35 piastres and, secondly, that the wages of other workers within the scope of the Labour Code be increased by rates varying from 8 to 20 per cent. On the advice of the Advisory Board, under section 15 of the Labour Code, declares the Government, the competent Minister in Tripolitania may determine the minimum basic wage. Recommendations of the Advisory Board do not bind employers. When the Advisory Board made the above recommendations, the federal Minister of Labour and Social Affairs set up an Ad Hoc Committee to inquire further into the matter. The Ad Hoc Committee met on 14 August 1961. After it had made its report, the Minister of Labour decided to approve a minimum of 42 piastres for adult workers and of 30 piastres for underage workers applicable throughout Libya. But no action was taken to apply the recommendation of the Advisory Board to raise other rates, already above the minimum, by from 8 to 20 per cent, this matter being outside the competence of the Board. This caused the strike notice to be given.
7. 222. At the same time, however, the Government claims that efforts were being made to help the workers in other ways-by encouragement of domestic co-operatives, by a policy of building low-cost houses, by promoting unified co-operation between the trade unions, by programmes to produce bread and other essential foods at low cost and to operate price controls. Nevertheless, declares the Government, Mr. Shita was attacking the Government in his own newspaper, setting the workers against the Government and the public officials and urging then to strike.
8. 223. The Prosecutor-General, after making investigations, " decided to imprison the accused for the sake of public security and the public interest ". On 12 November 1961, the Government declares, Mr. Shita was the only one of the accused still in prison, being held on charges of provoking a strike and of defalcation; his case therefore had been referred to the juridical authority, which is " a free, independent authority subject to no authority except the provisions of the law ". At another point in the reply it is stated that the Government referred the cases of the union leaders to the court, " whose authority has got no superior ".
9. 224. In its communication dated 15 January 1962 the Government states that Mr. Shita, having been charged with provocation of a strike and misuse of state moneys which had been entrusted to him, was acquitted by the lower court on the first charge and found guilty on the second.
10. 225. The report of the I.L.O representative who visited Libya at the invitation of the Government explains the legal provisions under which Mr. Shita was charged with provocation of a strike; according to Mr. Shita, he had been in prison two or three weeks before the second charge of defalcation was preferred against him. At the material time, section 57 (1) of the Labour Code provided that " workers may not strike unless they have given notice in the prescribed form to the employer and the Director of Labour at least one week before the strike is due to begin. The period of notice shall be two weeks in the case of workers employed in a public establishment." The I.L.O representative found that there had been some doubt in government circles as to whether this section required each worker to give notice individually or whether it was legal, as the unions contended and as they had done without being legally challenged in past cases, for the unions concerned to give collective two weeks' notices on behalf of their members-the procedure which they followed in the case of the strike of September 1961. This was the situation prevailing before Mr. Shita was charged with provoking the strike. His case was heard on 3 December 1961; the lower court acquitted him on the charge of provoking a strike, but sentenced him to four-and-a-half months' imprisonment on the charge of defalcation. Mr. Shita appealed, and the Prosecutor-General entered a cross-appeal in respect of the charge on which he had been acquitted. On 25 December 1961 the Court of Appeal acquitted him on all charges. When the I.L.O representative was in Libya (5-10 January 1962), it was not known whether the Prosecutor-General would appeal further to the Supreme Court.
11. 226. The I.L.O representative asked the Government to supply him with copies of the two court decisions relating to Mr. Shita; they were not then available, but the Government promised to forward the copies to the International Labour Office. These documents have not been received, but Mr. Shita himself has forwarded a purported copy of the decision of the Court of Appeal.
12. 227. Before considering the general trade union issues raised by the allegations relating to the arrest of Mr. Shita and other trade union leaders, the Committee has to consider the special issue raised by the fact that Mr. Shita's arrest prevented him from attending the 150th Session of the Governing Body of the I.L.O, to which he had been convened as a substitute Worker member.
13. 228. In this respect the situation is similar to one which the Committee was called upon to examine in Cases Nos. 134, 141, 153 and 154 relating to Chile. In that case, Mr. Godoy Bravo, also a substitute Worker member of the Governing Body, had been convened to attend the 131st Session of the Governing Body in March 1956. He was unable to attend because, following a general strike in January 1956, he was arrested in February and not released on bail until May. The Government maintained that, Mr. Godoy Bravo having been arrested, and a first application for bail having been refused by the courts, it was the intervention of the judicial authorities, with which the Executive could not interfere in view of the Constitutional separation of powers, which made it impossible for the Government to take any further action to facilitate his attendance in Geneva.
14. 229. The Committee considered the matter in issue in the case relating to Chile in the light of article 40 of the Constitution of the I.L.O, which reads as follows:
15. 1. The International Labour Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.
16. 2. Delegates to the Conference, members of the Governing Body and the Director-General and officials of the Office shall likewise enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation.
17. 3. Such privileges and immunities shall be defined in a separate agreement to be prepared by the Organisation with a view to its acceptance by the States Members.
18. 230. The agreement mentioned in paragraph 3 of article 40 is the Convention on Privileges and Immunities of the Specialised Agencies, adopted by the General Assembly of the United Nations on 21 November 1947 and accepted on 10 July 1948 by the International Labour Conference. Section 13 of Article V of that Convention states:
19. Representatives of Members at meetings convened by a specialised agency shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy the following privileges and immunities:
20. ......................................................................................................................................................
21. (a) immunity from personal arrest or detention and from seizure of their personal baggage, and in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind;
22. According to the Annex to the Convention relating to the International Labour Organisation these immunities are applicable to members of the Governing Body, as follows:
23. In their application to the International Labour Organisation the standard clauses shall operate subject to the following provisions:
24. 1. Article V (other than paragraph (c) of section 13) and section 25, paragraphs 1 and 2 (1) of Article VII shall extend to the Employers' and Workers' members and deputy members of the Governing Body of the International Labour Office and their substitutes; except that any waiver of the immunity of any such person member under section 16 shall be by the Governing Body.
25. ......................................................................................................................................................
26. Section 17 of Article V states:
27. The provisions of sections 13, 14 and 15 are not applicable in relation to the authorities of a State of which the person is a national or of which he is or has been a representative.
28. 231. In the case relating to Chile, the Committee observed that, as Mr. Godoy Bravo was a Chilean national, the Government of Chile, which had adhered to the Convention on Privileges and Immunities on 21 September 1951, was entitled to benefit from the application of section 17 of Article V thereof, but that it was still necessary to consider whether the action taken in that case was consistent with article 40 of the Constitution, which binds all States Members of the Organisation whether they have adhered to the Convention on Privileges and Immunities or not, and which provides that members of the Governing Body shall also enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation. The Committee also recalled that, on an occasion prior to the adoption of article 40 of the Constitution, the Governing Body, when it learnt at its 64th Session (October 1933) that a Workers' representative had been arrested by the authorities of his country, unanimously adopted on 24 October 1933 a declaration that no member of the Governing Body, elected by the Employers' and Workers' delegates to the Conference, should be interfered with in any way by reason of action taken in his capacity as a member of the Governing Body. The Committee expressed the view that it is equally important that no such member should be interfered with in any way to prevent his acting in his capacity as a member of the Governing Body. The Committee, therefore, considering it most unfortunate that an event arising directly from a strike should have had the effect of preventing a Worker member from attending a session of the Governing Body and considering that the independence of the judiciary, once proceedings had been initiated, could not be invoked by the Government in extenuation of action which it admitted was initiated by itself, recommended the Governing Body to draw the attention of the Government of Chile to the importance which the Governing Body attaches to the principle set forth in article 40 of the Constitution that members of the Governing Body shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions.
29. 232. In the present case also, Mr. Shita being a national of Libya, it is in the light of article 40 of the Constitution of the I.L.O rather than of Article V of the Convention on Privileges and Immunities, to which Libya adhered on 30 April 1958, that the matter requires to be considered. Likewise, in the present case, the Government, having caused the proceedings to be instituted, argues that the matter was from that point onwards within the competence of the judicial authorities who are independent of external authority and control.
30. 233. In these circumstances the Committee, as it did in the analogous case relating to Chile, and for the same reasons, recommends the Governing Body to draw the attention of the Government of Libya to the importance which the Governing Body attaches to the principle set forth in article 40 of the Constitution of the International Labour Organisation that members of the Governing Body shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organisation. Further, noting the statement by the I.L.O representative in Libya that the Government informed him that Mr. Shita could not be regarded as the leader of the most representative union in Libya, the Committee recommends the Governing Body to point out to the Government that Mr. Shita is a member of the Governing Body by virtue of his election thereto by the Workers' group of the international Labour Conference as a representative of that group and not as a representative of the workers of Libya. As it appears from the report of the I.L.O representative that, according to a recent decision, workers' representatives wishing to attend an international meeting outside Libya must obtain a permit to leave the country, this permit being granted by the Council of Ministers on the recommendation of the Ministry of Labour, the Committee recommends the Governing Body to draw to the attention of the Government that such a requirement for members of the Governing Body is not compatible with the principle set forth in article 40 of the Constitution of the I.L.O referred to above.
31. 234. The Committee also recommends the Governing Body to note that Mr. Salem Shita has been acquitted by the Court of Appeal on all the charges brought against him and to request the Government to be good enough to furnish to the Governing Body the text of the judgment of the Court of Appeal which acquitted him.
32. 235. Finally, in view of the allegation that various other trade union leaders were arrested at the same time as Mr. Shita and that their trial was to take place on 21 November 1961, the Committee recommends the Governing Body to request the Government to state whether in fact any of the persons concerned have been tried and, if so, to furnish information as to the outcome of the proceedings.
33. Allegations relating to Mr. Ali Bitar
34. 236. It is alleged that Mr. Ali Bitar, editor of the newspaper of the U.G.T.L, was also arrested on 10 September 1961 and held in prison without being charged.
35. 237. In its communication dated 12 November 1961 the Government declares that the newspaper in question, Al Talee'A, is owned by Mr. Shita and not by the union of which he is the general secretary. It was through this newspaper that Mr. Shita is stated to have incited the workers and attacked the Government. The Government cites a number of purported extracts from the newspaper taken from issues put out in the weeks preceding the strike.
36. 238. In its reply dated 15 January 1962 the Government states that Mr. Bitar was never a trade unionist, as he is not a worker, and his behaviour, as editor of an independent newspaper which is not a trade union newspaper, is governed by the Publication Law, like that of other journalists. On charges arising out of the matter for the publication of which he was responsible, he was fined £100.
37. 239. It appears from the report of the I.L.O representative who went to Libya that Mr. Bitar was arrested on 5 September 1961, and was fined on a charge of insulting the port workers, but that he has instituted an appeal which is still pending.
38. 240. The Committee has emphasised in a number of cases' that the right to express opinions through the press or otherwise is clearly one of the essential elements of trade union rights. While the Committee has been especially concerned in cases in which the freedom of newspapers owned by trade unions is concerned, it has never suggested that the right of a union to express opinions through the independent press-if that press is prepared to print them-is to be distinguished from the right to express opinions in purely trade union newspapers. In the present case, however, the newspaper was only technically independent, in that it was operated by the general secretary of the union and not by the union-it was nevertheless used as the more or less official mouthpiece of the union concerned. That would seem to be as far as the Committee need go in considering the present allegations, which do not raise issues such as the suppression of a newspaper for printing trade union matter, in which case the respective situations of a union newspaper and an independent newspaper would call for particular consideration in the light of the principle that trade unions should have the right to organise their administration and activities and to formulate their programmes.
39. 241. In the present case it is not known to the Committee on the basis of what articles Mr. Bitar was charged with " insulting the port workers "-nothing in the extracts from the newspaper furnished by the Government would appear to clarify this matter. It would seem that the only way to have a clear explanation would be to obtain the text of the judgment according to which Mr. Bitar was fined, a judgment, moreover, which is the subject of a pending appeal.
40. 242. In many cases in the past the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, where such proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.
41. 243. In these circumstances the Committee recommends the Governing Body to request the Government to furnish a copy of the judgment given in the case of Mr. Ali Bitar, to confirm whether Mr. Bitar has in fact instituted an appeal and, if so, to furnish also a copy of the judgment of the appellate court when it is available.
42. Allegations relating to Interference with the Right to Organise
43. 244. It is alleged that 18 trade union leaders who were arrested at about the same time as Mr. Shita and Mr. Ali Bitar were told by the Government that they would be reinstated in their occupations and the proceedings against them discontinued on condition that they signed a statement indicating that they undertook to withdraw from the U.G.T.L and never to adhere to it in future. The complainants declare that, when they rejected this condition, it was decided to bring them to trial on 21 November 1961. It is further alleged that the Government also gave orders to employers not to re-engage any of the strikers who failed to sign a similar statement, and that in November 1961, there were still 350 workers who had not been reinstated in their employment.
44. 245. In its communication dated 15 January 1962 the Government states that no offer to drop proceedings on such a condition was ever made to Mr. Shita or to Mr. Bitar. As no allegation to this effect is made, the Committee has not pursued the point further.
45. 246. The Government then denies that it instructed employers not to re-engage workers as alleged, stating that it made every effort to ensure the re-engagement of the strikers. Fourteen cases affecting workers whom employers refused to reinstate, says the Government, have been referred to the Court of Urgent Cases in Tripolitania, and the Government furnished evidence to this effect to the I.L.O representative who visited Libya from 5 to 10 January 1962.
46. 247. According to the report of the I.L.O representative, a number of trade union leaders told him that the police had put pressure on them to disaffiliate from the U.G.T.L and that persuasion and promises were used to the same end. Unfortunately, the representative was not in a position to take up this matter with the authorities in a precise way, as the persons concerned asked that their names should not be disclosed.
47. 248. The report of the I.L.O representative also reveals conflicting evidence as to the numbers of workers who have not been re-engaged since the strike. Workers' leaders furnished a list of about 200 workers, most of whom, it was contended, had not been reengaged. But the federal Administration declared that they were aware of only 14 cases, all relating to one undertaking; these persons had referred their cases to the Director of Labour, in accordance with section 12 of the Labour Code, and the Director of Labour referred the cases to the competent judge of summary proceedings, as he is required to do if he is unable to effect a settlement within one week. The workers' leaders also informed the I.L.O representative that when the dismissed workers applied to the provincial Director of Labour pursuant to the Code he replied that he could do nothing after the strike, as the matter was in the hands of the police; this was not admitted by the Government and the I.L.O representative, therefore, could only take note of the divergence of views on this point. In order to avoid difficulties of this kind in the future, paragraph 26 of the report of the I.L.O representative contains a recommendation that section 12 of the Labour Code be amended so as to permit workers whose applications to the Director of Labour do not lead to a satisfactory result within a prescribed period to address themselves directly to the courts.
48. 249. The Committee has always attached the greatest importance to the principle that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, including acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership, and acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership. While in the present case, in view of the conflicting evidence, the Committee cannot reach any definite conclusion as to what inducements or threats may or may not have been made by the police or employers or other parties to induce persons to leave the U.G.T.L, or as to the number of strikers who have still not been re-engaged, it would seem desirable, in order to assist the promotion of better industrial relations in Libya in the future, that the attention of the Government should be drawn to the above principle.
49. 250. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance which it has always attached to the principle enunciated in paragraph 249 above; to express the hope that the Government, in its desire to promote sound and harmonious industrial relations in Libya, will exercise all possible influence to secure the reinstatement, with full regard for the principle enunciated above, of all the dismissed strikers who have not yet been re-engaged, and will keep the Governing Body informed as to developments in this connection; to request the Government to inform the Governing Body as to the outcome of the 14 cases of dismissed workers which have been referred to the Court of Urgent Cases; to suggest to the Government that it may consider the advisability of amending section 12 of the Labour Code so as to permit workers whose applications to the Director of Labour do not lead to a satisfactory result within a prescribed period to address themselves directly to the courts.
50. Allegations relating to the Violation of Trade Union Premises
51. 251. It is alleged that, at the time the arrests took place, the police sacked the premises of the U.G.T.L, evacuated them by brutal methods and destroyed the telephone lines.
52. 252. In its communication dated 15 January 1962 the Government emphatically denies the truth of this allegation, but speaks not of the premises of the U.G.T.L but of the premises of the newspaper Al Talee'A.
53. 253. According to paragraph 25 of the report of the I.L.O representative who visited Libya, he was told that the police occupied the premises of the U.G.T.L for four days and cut the telephone.
54. 254. In Case No. 133 relating to the Netherlands Antilles, it was established that trade union premises were searched by order of the Public Prosecutor in the course of assembling evidence material to proceedings taken against union officers on charges of inciting a violent strike. The Committee observed that subsequent events, including the acquittal of the accused, showed that the proceedings instituted had not been justified and expressed the view that in the circumstances the measures taken must have interfered with the proper functioning of the trade union concerned. In Case No. 179 relating to Japan, the Committee, while recognising that trade unions, like other associations or persons, cannot claim immunity from search for their premises, emphasised the importance which it attaches to the principle that such a search should only be made following the issue of a warrant by the ordinary judicial authority, after that authority has been satisfied that reasonable grounds exist for supposing that evidence exists on the said premises material to a prosecution for an offence under the ordinary law and provided that such search is restricted to the purposes in respect of which the warrant was issued.
55. 255. In the present case the issues are very confused. To the allegation that union premises were brutally occupied, the Government replies that no such events took place at the premises of the newspaper Al Talee'A. The purported copy of the judgment of the Court of Appeal forwarded by Mr. Shita shows that his house was searched but does not reveal whether the police occupied the premises of the union. As in the case of the Netherlands Antilles, in the present case the subsequent court proceedings resulted in the acquittal of the union officers concerned on charges arising out of a strike, but in the present case the matter may still be sub judice if a further appeal has been lodged. In any event, the matters alleged are so closely connected with the strike and arrests of trade union leaders on which the Committee has already formulated its conclusions that the Committee considers that, in this instance, it should regard them as adequately covered by the conclusions on the broader related issues which it has already reached.
56. 256. In these circumstances the Committee recommends the Governing Body to decide that, subject to the observations contained in paragraph 254 above, no useful purpose would be served by pursuing further its examination of these allegations.
57. Allegations relating to the Sequestration of Union Funds
58. 257. It is alleged by the I.C.F.T.U that trade union funds were sequestrated, an allegation which is denied by the Government. Workers' leaders told the I.L.O representative in Libya that the funds of the U.G.T.L were not sequestrated, as is indicated in paragraph 25 of his report.
59. 258. In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
60. Allegations relating to the Refusal to Admit I.C.F.T.U Representatives to Libya
61. 259. It is alleged that, after the events of 10 September 1961, the I.C.F.T.U sent a telegram to the King of Libya requesting him to grant an audience to an I.C.F.T.U delega-tion. On 22 September 1961 Mr. Herbert Tulatz, Assistant Secretary-General of the I.C.F.T.U, and Mr. Raymond Goosse, a member of the I.C.F.T.U secretariat, both of whom held Libyan entry visas, flew from Tunis to Tripoli. An entry visa had been refused to Mr. M. Aleya, a barrister in Tunis, who was also to have been a member of the mission. Acting on instructions from the federal Government, it is alleged, the head of the police at Tripoli aerodrome cancelled the entry visas of the two I.C.F.T.U representatives and ordered them to leave Libya by the same plane, at the same time refusing to allow them to communicate with anybody inside or outside Libya. On the same day, six representatives of Algerian, Tunisian and Moroccan trade unions, who had arranged to take joint action with the I.C.F.T.U mission with a view to settling the existing dispute by negotiation, were expelled from the country. The U.G.T.L being affiliated with the I.C.F.T.U, the latter considers this to have been contrary to the right of workers' organisations to affiliate with international organisations of workers, which implies also the right of freedom of consultation between national and international organisations and the maintenance of close relations between them.
62. 260. In its communication dated 12 November 1961 the Government declares that, with respect to the non-admission of the I.C.F.T.U representatives, " the Ministry of Labour and Social Affairs wishes to express the deepest sorrow ". The Government explains that the incident took place during a period of great tension, when the question of public security was causing much concern to the authorities, expresses the hope that the effects of such an undesirable incident will soon be forgotten and gives the assurance that the presence of the I.C.F.T.U representatives in Libya will be welcomed at any time.
63. 261. In a number of cases the Committee has drawn attention to the fact that the right of national workers' organisations to affiliate with international organisations of workers normally carries with it the right of national organisations to maintain contact with the international organisations of workers with which they are affiliated.
64. 262. In these circumstances the Committee recommends the Governing Body:
65. (a) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that national trade union organisations should have the right freely to maintain contact with the international organisations of workers to which they are affiliated;
66. (b) to note the Government's expression of regret that the representatives of the I.C.F.T.U who were sent to Libya were not admitted to the national territory and its assurance that such representatives will in future be welcomed at any time;
67. (c) to conclude therefore that, subject to the observations made in subparagraph (a) above, there is no ground for it to pursue further its examination of these allegations.
68. Allegations relating to Amendments to the Labour Code
69. 263. It is alleged that amendments to the Labour Code (a) deprive persons employed by the State and workers employed in public institutions and public utility services of the right to strike; (b) prohibit the establishment of more than one central trade union organisation in Libya; and (c) require that organisation to obtain the permission of the competent Minister before affiliating with an international trade union organisation. These three questions will be considered separately.
70. (a) Allegations relating to the Right to Strike
71. 264. It is alleged that the Labour Code, as amended, prohibits strikes by persons employed by the State and workers employed in public institutions and public utility services.
72. 265. The Government declares that the categories of workers and employers concerned are covered by special rules and regulations, which give them several advantages and safeguards which are not available to workers in the private sector. The Government contends that it cannot accord to civil servants or publicly employed workers the right to strike, because their services are directly related to the security and safety of the State.
73. 266. The Committee has always applied the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights', and has noted on a number of occasions that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has emphasised the importance which it attaches, where strikes are prohibited or subject to restrictions, to ensuring adequate guarantees to safeguard to the full the interests of workers thus deprived of an essential means of defending occupational interests and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
74. 267. Section 58 (1) of the Labour Code, as amended on 19 September 1961, prohibits entirely strikes by workers in the service of public undertakings. This provision has to be read in conjunction with the new section 2bis, which excludes civil servants and employees and workers in the service of the federal Government, the provincial governments and public establishments from the application of the Code.
75. 268. As is pointed out in paragraph 31 of the report of the I.L.O representative who recently visited Libya, the workers employed in public establishments, while they would no longer be covered by it if the Code as amended is applied, would also, for the time being, not be governed by other legal provisions either, unless it is decided to assimilate them to unclassified civil servants. In particular, the report points out, they would no longer be entitled to form or join trade unions and " the categories of workers mentioned above, who are no longer within the scope of the Labour Code and are debarred from striking, would be deprived of the assistance of the Conciliation Officer and of the conciliation machinery and would have no collective means of processing a claim for an increase of wages or salaries however deserving ". The I.L.O representative states, in paragraph 36 of his report, that he drew the attention of the Government " to the need for satisfactory alternative arrangements for the redress of grievances ". In paragraph 52 of his report, he recommends that the provision prohibiting strikes both in public establishments and public utility establishments, " which is very wide, should be reconsidered and supplemented, in so far as any such prohibition is maintained, by satisfactory alternative arrangements for the redress of grievances, such as independent, impartial and speedy machinery whose awards would be binding on both sides ".
76. 269. With reference to his observation that the prohibition of strikes is now very wide, the I.L.O representative points out, in paragraphs 31 and 36 of his report, that the State is the biggest single employer in Libya, and that, apart from the persons employed directly by the federal and provincial governments, public undertakings comprise, inter alia, the port works, electricity plants, railways, airports, public works, the tobacco monopoly, mineral waters, various institutes, the culture of esparto grass, big farms, etc., while, according to Regulation No. 3 of 1960, public utility undertakings comprise electricity, water, gas, medical services, services connected with ports and airports, public transport, posts, telegraphs, telephones and broadcasting, bakeries and public sanitation.
77. 270. In this connection, in Case No. 179 relating to Japan, the Committee, observing that the law prohibited strikes in all publicly owned corporations and undertakings irrespective of their nature, recommended the Governing Body to draw the attention of the Government of Japan to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential and those which are not. It would seem appropriate in the present case to suggest to the Government of Libya that it may care to reconsider the relevant legislation in the light of the above considerations.
78. 271. In these circumstances the Committee recommends the Governing Body:
79. (a) to draw the attention of the Government to the importance which the Governing Body has always attached to the principle that, where strikes by workers are restricted or prohibited, such restriction or prohibition should be accompanied by the provision of conciliation procedures and of independent and impartial arbitration machinery whose awards are in all cases binding on both sides;
80. (b) to draw the attention of the Government to the fact that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential and those which are not;
81. (c) to suggest to the Government that it may care to reconsider the existing situation in the light of the considerations set forth in subparagraph (b) above;
82. (d) to suggest to the Government, that, in so far as the provision prohibiting strikes in public establishments and public utility establishments is maintained, it will consider, having regard to the principle enunciated in subparagraph (a) above, establishing satisfactory alternative arrangements for the redress of grievances;
83. (e) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
84. (b) Allegations relating to the Prohibition of the Establishment of More than One Central Trade Union Organisation in Libya
85. 272. It is alleged that, under the Labour Code as amended, the formation of only one central trade union organisation in Libya will be permitted.
86. 273. The Government declares that the new section 39bis of the Labour Code, containing this provision, was motivated by the need to avoid competitive and challenging interests in the trade union movement and the confusion which resulted therefrom in the past.
87. 274. The Committee emphasised in Case No. 191 relating to the Sudan the importance which it attaches to the generally accepted principle that workers' organisations should have the right freely to form federations and Confederations.,
88. 275. The I.L.O. Committee of Experts on the Application of Conventions and Recommendations, when examining a similar provision in the legislation of the United Arab Republic (Egypt), pointed out that such a provision does not appear to be compatible with the principle that trade union organisations should have the right to establish and join federations and Confederations of their own choosing without previous authorisation.
89. 276. The Committee, therefore, recommends the Governing Body to draw the attention of the Government to the importance which the Governing Body attaches to the generally recognised principle that workers' organisations should have the right freely to form federations and Confederations of their own choosing, to express the hope that the Government will reconsider the provisions of section 39bis of the Labour Code so as to give full effect to the foregoing principle, and to request the Government to keep the Governing Body informed of any further developments in this connection.
90. (c) Allegations relating to the Requirement of Previous Authorisation for Affiliation with International Organisations of Workers
91. 277. It is alleged that the single Confederation which will be permitted will be able to affiliate with international organisations of workers with the prior approval of the Minister of Labour and Social Affairs.
92. 278. The Government declares that this provision, which is also contained in section 39bis of the Labour Code, will " not affect the relation of the General Union and the international organisations ". The Government adds that section 39 of the Code as enacted in 1957 also made international affiliation subject to the approval of the competent minister.
93. 279. On a number of occasions, the Committee has emphasised the importance which it attaches to the generally accepted right of workers' and employers' organisations, federations and Confederations to affiliate freely with international organisations of workers and employers, a right which is embodied in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In Case No. 11 relating to Brazil the Governing Body, on the recommendation of the Committee, suggested to the Government that it should re-examine certain provisions of its legislation, including provisions which subjected to governmental authorisation the right of workers' organisations to affiliate internationally, with a view to ratifying the above Convention. Again, in Case No. 248 relating to Senegal the Committee emphasised that national legislation should not be applied in such a manner as to contravene the principle that trade union organisations should be able to affiliate freely with international organisations of workers - a right which the Committee has stated to be " almost universally recognised ".
94. 280. In these circumstances the Committee recommends the Governing Body:
95. (a) to draw the attention of the Government to the importance which it attaches to the generally accepted principle that trade union organisations should have the right to affiliate with international organisations;
96. (b) to express the view that the requirement of governmental permission for such international affiliation is not compatible with this principle;
97. (c) to note the Government's statement that the relations of the General Union of Libyan Workers with international organisations will not be affected;
98. (d) to suggest to the Government, nevertheless, that it may consider amending its legislation so as to give full effect, both in law and in fact, to the principle enunciated above.