Informe definitivo - Informe núm. 197, Noviembre 1979

1. 104. The complaint of the World Confederation of Organisations of the Teaching Profession (WCOTP) is contained in a communication dated 16 January 1979. The Government forwarded its observations in a communication dated 1 June 1979.
2. 105. The Government of the United Kingdom has ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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), and has declared these Conventions to be applicable without modification to Antigua.

A. The complainant's allegations

1. 106. The complainant stated that on 31 December 1977, Juno Samuel, President of the Antigua Union of Teachers (AUT), was notified of his transfer from an established post in the education service to an unestablished post in the Ministry of Economic Development and Tourism. His new duties concerning the introduction of the metric system in no way related to his qualifications as a psychologist in the complainant's opinion, this transfer was intended to damage his position as President of the AUT.
2. 107. According to the complainant, after several unsuccessful attempts by the union to persuade the Government to reverse its decision, on 14 February 1978 the Premier requested the AUT to submit proposals regarding transfer policies. A copy of a memorandum containing the union's suggestions to the Government is appended to the complaint. After proposing a number of general principles which should apply to transfers, the memorandum concluded by saying that the AUT stands firm on the principle that the acceptance of this policy begins with the acceptance of Mr. Samuel's right to practise the profession of his choice and that the AUT was committed to his reinstatement in the teaching profession. On 18 May 1978, the WCOTP goes on the Chairman of the Cabinet Committee concerned with civil service matters informed the union that the memorandum was couched in a language which indicated insubordination, and accordingly was unsatisfactory.
3. 108. In the face of this negative response, on 7 June 1978 the AUT organised peaceful picketing of the ministries of Education and of Economic Development and Tourism. The complainant states that 13 teachers, including several officers of the union, were arrested and charged with "watching and besetting". When they were released from the police station, a large crowd accompanied them back to the AUT headquarters where Mr. Samuel spoke to the crowd. He was arrested and charged with addressing a public meeting held without police authorisation.
4. 109. Pending the hearing of the charges against them, the President of the AUT and the 13 teachers were suspended from their: work on 20 per cent of salary. The case against the teachers was dismissed when heard in court, but the authorities appealed against: the verdict and thus the suspension remained in force. A similar situation existed regarding the case of Mr. Samuel, who had been convicted of a breach of the regulations and sentenced to payment of a fire, but had appealed against the verdict.
5. 110. By a letter of 5 June 1978 from the Chief Education Officer, ,a copy of which is attached to the complaint, the union was notified that it had been brought to the attention of the authorities that groups of teachers from the AUT visited schools on their union matters. The letter stated that delegations from the AUT were not to visit schools during sessions, and that visits by teachers to other schools required permission from the Ministry of Education. The principals of the schools - adds the complainant - were reluctant to even accept union notices for public display for fear of annoying the authorities. The Minister of Education and Culture publicly accused the AUT leaders of being unrepresentative of the broad mass of the teachers and of being politically motivated in their actions. In this respect, the complainant states that the AUT is politically independent and that the present officers were elected (or re-elected) at a general meeting of the union in July 1978.
6. 111. The complainant also indicates that at the beginning of the new school year in September 1978, the Ministry of Education relocated a large number of teachers including the principals of all secondary schools but one, with the intention of breaking up pockets of strength in the AUT and causing a general state of apprehension in the education service and discouraging the work of the union.
7. 112. Furthermore, picketing on 13 December 1978 resulted in the arrest of 15 teachers and the use of force by the police, including, in particular, a physical assault on the General Secretary of the AUT, Harold Lovell. On a third occasion, picketing on 17 December, led to more arrests and the retention overnight in prison of the teachers concerned.
8. 113. Finally, on 11 January 1979, the WCOTP was informed that eight of the suspended teachers, namely, Mr. Samuel, Harold Lovell - the General Secretary, Leon Symister, Euphema Joseph, Evans Moulon, Shelly Clarke, Adlai Carrot and Ira Davis, had been dismissed by the Government. The only reason given for the dismissal was "in the public interest".

B. The Government's reply

1. 114. In its communication of 1 June 1979, the Government of Antigua explains that the great mass of the members of the teaching profession are established employees of the Government and as such are excluded from the provisions of the 1975 Antigua Labour Code. The teaching profession has for many years prior to the enactment of the Code formed itself into a trade union registered under the Trade Unions Act in force at the time but this Act was repealed by section G.26 of the Code. The Antigua Constitution Order 1967, which by section 11 protects the right to form and belong to trade unions and other associations exempts from its ambit any law which "imposes restrictions upon public officers". The members of the teaching profession are "public officers" and Parliament has excluded those who are "established employees" from the protection afforded by the Code.
2. 115. In early 1978, a general election then being due in the Antigua Union of Teachers, a small group of militants organised it in such a way that only carefully selected persons were 'summoned.
   • The teaching fraternity comprised over 600 persons but only 120 were notified. Even a vice president of the union was omitted. A mock election was held and only the militants were elected into office; a teacher on probation became the general secretary and some of the other persons elected were students at a teacher-training institution. Immediately thereafter the bulk of the profession withdrew their support from the union. Some time after the election there was a Cabinet reshuffle and a new Minister of Education was appointed.
3. 116. According to the Government, the AUT launched a public campaign to mobilise public support against it, through such means as newspaper articles, circulars, visits to the homes of teachers and parents, talks to school children on school premises encouraging them to picket government offices and stage marches, and through letters to various institutions to arouse international opinion. The Government attaches to its reply examples of the type of literature being distributed. For instance, an article in the October 1978 "New Teacher" journal, signed by the secretary general of the union, refers to the Minister of Education as a "power maniac".
4. 117. The Government continues that on 3 January 1979 the AUT declared a strike and the air of tension in the State was so great that violence broke out. The houses of the Government's Permanent Secretary, the Chief Education Officer, the Chief Magistrate and a police superintendent were fire bombed; one school building was severely damaged by fire and attempts were made to burn down three others; explosives were found in three government buildings; a police officer was wounded during unauthorised demonstrations. A striking teacher was charged, convicted and sentenced by a magistrate in connection with this last incident.
5. 118. The striking teachers then solicited and obtained the support of the Progressive Labour Movement and the Antigua Caribbean Liberation Movement - a Communist political party of which the union's General Secretary and a few of the leading militants are members. The Government provides a copy of an announcement entitled "The war against the corrupt Bird regime is on", which contains allegations of police brutality and accuses the Government of corruption and failure to meet the economic and social needs of the people. Referring to the authorities, it states that "They are corrupt. They are illegal. Therefore, they must go." It also states that "organised agitation is needed" and calls for a one-day strike on 1 March 1979 by all workers and businessmen, "against injustice, against police brutality, against Bird's dictatorship". An invitation was made to a big public forum at AUT headquarters.
6. 119. In this atmosphere the Government considered that it had to do its duty of preserving law and order. For example, on 27 February 1979, the United Front attempted to stage a march without permission, regardless of a personal plea from the Commissioner of Police. The Government states that the police were constrained to use force to prevent a flagrant violation of the law and that the general strike called for 1 March received no public support.
7. 120. As regards the allegations on the transfers of teachers, the Government states that Juno Samuel was transferred to an established post for which he was considered qualified. It adds that the Public Service Commission has the right under the Antigua Constitution to transfer public officers with or without consultation. The fact that Mr. Samuel was President of the AUT was mere coincidence and he has continued to function as such with recognition from the Government.
8. 121. Regarding the allegation that the union's right to be consulted in matters of transfers has been denied, the Government states that such a right is not an established procedure in the service of the Government except where qualifications are queried and that Mr. Samuel was not engaged as a psychologist and was not working as such. Mr. Samuel has left his post on several occasions to attend to matters for the union such as presenting the union's views to the Special Committee.
9. 122. It also indicates that the provisions of the Antigua Labour Code on labour disputes do not apply to established public officers. Consequently, picketing, whether peaceful or not, cannot be entertained. This precedent could damage the entire service if allowed to prevail. The civil servants or established workers have the right to process their grievances through the Ministry and the Public Service Commission, or through a special inquiry if the dispute is outside the competence of the Commission.
10. 123. As to Mr. Samuel's arrest, the Government states that as a civil servant he should not have addressed a public meeting without permission from his ministry and that his actions violated the 1972 Public Order Act.
11. 124. Regarding the salary reduction to suspended teachers, the Government states that suspension when criminal charges are laid against civil servants is normal under the Public Service Commission Regulations and this Commission has absolute discretion as to the percentage of salary receivable. Upon dismissal of the charges, the whole or that portion of the salary withheld is reimbursed. Moreover, the Government states that in December 1978 the Commission increased the percentage of salary paid to the suspended officers to 75 per cent, retroactive to the date of suspension. The suspensions ceased on 1 January 1979 and full emoluments were restored from the date of suspension. In the case of the union President, the Appeals Court gave a verdict in his favour on a technical ground. The Government states that it has never at any time entertained a policy to force the suspended teachers to seek alternative employment.
12. 125. According to the Government, the AUT's President and the 13 teachers had to have the approval of the ministry of Education to enter school premises because they had gone to the State College and schools and had actually threatened the others who were working; they used abusive language, destroyed books and wrote filthy sentences on the blackboard. In the usual operation of the union, the officers are not prevented from arranging meetings in the schools outside of the school sessions.
13. 126. As regards the September 1978 relocation of teachers, the Government states that this was done to meet educational requirements. Moreover, as Antigua only covers 108 square miles and there are only eight government secondary schools, such relocation would not in fact break up pockets of strength in the union.
14. 127. The Government denies that the police used any force during the picketing on 13 December 1978; on the contrary, it was alleged that the General Secretary of the Union assaulted a police constable on sentry duty at the police station and had to be restrained and arrested. The 17 December 1978 pickets were arrested and detained overnight for security reasons as the teachers had arranged a public meeting that night. The statement by the Minister of Education regarding the politisation and unrepresentativity of the AUT is, according to the Government, justified and shared by the majority of the population.
15. 128. The Government states that on 7 January 1979, the teachers named, except Harold Lovell, were retired in the "public interest" by the appropriate legal authority for writing articles of a political nature and for activities subversive to the Government and contrary to the rules and regulations governing the public service. They will receive the retirement benefits to which they are entitled. Mr. Lovell was still serving his probationary period and as the Public Service commission found him unsuitable for employment in the public service, he was refused an appointment.

C. Conclusions of the Committee

1. 129. The allegations presented in this case relate to a series of measures affecting the Antigua Union of Teachers and several of its leaders and members. Although there is a contradiction on many points between the information provided by the complainant and the Government's reply, it would appear that what was originally a dispute concerning the transfer of the AUT President, Mr. Samuel, from a post in the Ministry of Education and Culture to another ministry led to a much wider conflict between the AUT and the Government.
2. 130. The complainant alleges that, after unsuccessfully attempting to persuade the Government to reverse its decision concerning Mr. Samuel, and after a union memorandum containing policy proposals was rejected by the Government, the union resorted to peaceful picketing against the attitude of the Government and the repressive measures taken against the teachers. These measures included the relocation of teachers, the arrest of several union leaders and members, their suspension from work pending criminal proceedings and their subsequent dismissal from government service. It is also alleged that, in the course of these events, high government officials tried to discredit the union through public statements and that the authorities prohibited the AUT leaders from entering the schools.
3. 131. The Government's reply confirms several of the facts alleged in the complaint, although explaining them differently. The Government states that the transfer of the President of AUT at the beginning of 1978 was a measure taken in accordance with the right of the Public Service Commission, under the Constitution of Antigua, to transfer public officers with or without consultation. The information available shows that Mr. Samuel continued to discharge his functions as President of AUT and that in this capacity he presented the union's proposals to the Government concerning transfer policies for the teaching profession. As regards the relocation of school principals and teachers later in 1978, the Committee notes the observations made by the Government that these measures were taken for service reasons and that, due to the size of Antigua, could not negatively affect the trade union activities of those concerned.
4. 132. In a number of cases, the Committee has pointed out 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 must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations should have the right to elect their representatives in full freedom. The Committee has also indicated that a deliberate policy of frequent transfer of persons holding trade union office may seriously harm the efficiency of trade union activities.
5. 133. The Committee has recalled that the Fact-Finding and Conciliation Commission on Freedom of Association had stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of antiunion discrimination; it drew attention to the desirability of settling grievances wherever possible by discussion without treating the process of determining grievances as a form of litigation, but, in cases where there will be honest differences of opinion or viewpoint, resort should be had to impartial tribunals or individuals representing the final step of the grievance procedure.
6. 134. In the present case, in the light of the Government's observations, the Committee considers that the complainant has not furnished evidence showing that the transfer of principals and teachers from one school to another involved an infringement of trade union rights. Nevertheless, in the case of the Union President, Mr. Samuel, his transfer to a post in another ministry, even if his trade union functions continued to be recognised by the Government, could hamper to some extent his effective discharge of these functions. In this respect, the Committee wishes to draw attention to the principle embodied in Article 6 of the Labour Relations (Public Service) Convention, 1978 (No. 151), according to ----------- which such facilities shall be afforded to the representatives of recognised public employees' organisations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work, provided that the granting of such facilities shall not impair the efficient operation of the administration or service concerned. The Committee points out that, in the interest of good labour relations, due consideration should be given to this principle and to the principles mentioned in paragraphs 132 and 133 above, when transfers of trade union officials are examined for reasons of service.
7. 135. The Committee notes that the union's proposals to the Government concerning transfers in the teaching profession were made subject to the condition that Mr. Samuel be reinstated in the teaching service. The rejection of this request, considered by the Government as implying insubordination, was followed by a serious further deterioration of relations between the AUT and the authorities leading to the incidents, arrests, suspensions of teachers and eventually the retirement of several of them by government decision. The Government refers to acts of violence and other breaches of the law and to offensive attacks on the authorities in the press; the Minister of Education, for his part, had spoken on the radio accusing the leaders of the AUT of being unrepresentative and politically motivated. The observations and documents provided by the Government show that, after the presentation of the complaint in January 1979, the situation had worsened and that by then the matter had become part of a larger confrontation in which the AUT had joined with political groups strongly criticising the conduct of the authorities and demanding a change of government.
8. 136. As pointed out by the Committee in other cases, it is only in so far as trade union organisations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference with their activities. On the other hand, the Committee has pointed out that it is difficult to draw a clear distinction between what is political and what is, properly speaking, trade union in character. These two notions overlap and it is inevitable, and sometimes usual, for trade union publications to take a stand on questions having political aspects as well as on strictly economic and social questions.
9. 137. In the present case, the announcement calling for a strike on 1 March 1979, contained passages which went beyond the scope of what can be properly defined as normal trade union activity. The Committee however feels that had the original grievance concerning the transfer of a trade union official been dealt with through constructive negotiation between the parties, in accordance with the principles of freedom of association, the unnecessary tensions which have arisen in this case could have been avoided.