GB.267/7 - 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 7 and 14 November 1996, under the chairmanship of Professor Max Rood.

2. The members of Argentinian and French nationalities were not present during the examination of the cases relating to Argentina (Case No. 1881) and France/French Polynesia (Case No. 1858) respectively.

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3. Currently, there are 81 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 22 cases on the merits, reaching definitive conclusions in 17 cases and interim conclusions in 5 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1886 (Uruguay), 1887 (Argentina), 1888 (Ethiopia), 1889 (Brazil), 1890 (India), 1891 (Romania), 1892 (Guatemala), 1894 (Mauritania), 1895 (Venezuela), 1897 (Japan), 1898 (Guatemala), 1899 (Argentina), 1900 (Canada), 1901 (Costa Rica), 1902 (Venezuela), 1904 (Romania), 1905 (Zaire), 1906 (Peru) and 1907 (Mexico), because it is awaiting information and observations from the Governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1796 (Peru), 1812 (Venezuela), 1825 (Morocco), 1828 (Venezuela), 1833 (Zaire), 1845 (Peru), 1850 (Congo), 1851 (Djibouti), 1852 (United Kingdom), 1863 (Guinea), 1872 (Argentina), 1873 (Barbados), 1877 (Morocco), 1878 (Peru), 1880 (Peru). In Cases Nos. 1872 (Argentina) and 1878 (Peru), the Governments stated that they would send their observations soon.

Observations requested from complainants

6. In Case No. 1862 (Bangladesh), the Committee is still awaiting the complainant's comments. The Committee requests the complainant to send without any further delay the observations and information requested. In Case No. 1881 (Argentina), the Committee decided to transmit a copy of the Government's reply to the complainants in order for them to provide their own comments. In Case No. 1882 (Denmark), the complainant announced that it would be sending additional information shortly.

Partial information received from governments

7. In Cases Nos. 1512, 1539, 1595, 1740, 1778, 1786 and 1823 (Guatemala), 1835 (Czech Republic), 1843 (Sudan), 1864 (Paraguay), 1869 (Latvia) and 1903 (Pakistan), 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. 1859 (Canada), 1865 (Republic of Korea) and 1891 (Romania), 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. 1831 (Bolivia), 1854 (India), 1867 (Argentina) and 1885 (Belarus), the Committee observes that, despite the time which has elapsed since the presentation of these complaints or since their last examination, it has not received the Governments' observations. The Committee draws the attention of all these Governments to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, even if the observations or information requested from the governments have not been received in due time. The Committee accordingly requests the Governments to transmit their observations or information as a matter of urgency.

Missions

10. The Committee has been informed that a mission directed by Mr. Santiago Perez del Castillo took place in Colombia from 7 to October 1996 to gather information relating to Cases Nos. 1761, 1787 and 1896. The Committee intends to examine these cases at its next meeting on the basis of the mission report of the representative of the Director-General.

11. The Committee was also informed that a mission directed by Mr. Barney Jordaan took place in Swaziland from 30 September to 4 October 1996 to gather information regarding Case No. 1884. The Committee intends to examine this case at its next meeting on the basis of the mission report of the representative of the Director-General.

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12. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Bulgaria (Case No. 1765) and Indonesia (Case No. 1773).

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

Case No. 1509 (Brazil)

13. The Committee examined the case concerning the murder of the trade unionist Valdicio Barbosa dos Santos at its March 1995 meeting [see 302nd Report, para. 16]. At this occasion, the Committee noted that the Public Prosecutor had charged Mr. Marçal da Rocha with being responsible for the murder in question, and that, even if his whereabouts were unknown, the judicial authorities ruled that he should be placed in preventive detention and be arrested. Furthermore, the Committee noted that the Public Prosecutor had charged Mr. Romualdo Eustaquio Luz Faria with being jointly responsible in the murder and summoned him for interrogation. In a communication dated 19 April 1996, the Government states that Mr. Marçal da Rocha is still at large and that the police are trying to arrest him. In addition, the Government states that the judicial authorities summoned the defendant Mr. Romualdo Eustaquio Luz Faria to file his defence pursuant to the relevant provisions of the penal procedural code. The Committee notes this information and requests the Government to continue to keep it informed on the legal proceedings in this case.

Case No. 1623 (Bulgaria)

14. During its last examination of this case in March 1994 [see 292nd Report, paras. 333-352], the Committee requested the Government to make every effort for a new law to be enacted defining the principles for the redistribution of trade union assets confiscated from the former Bulgarian trade unions, with a view to allowing the Working Group to continue its work and ensuring that all the measures already taken and those yet to be taken will in the near future result in a definitive allocation of the assets and funds covered by the law of 1991. The Committee further requested the Government to ensure that the voluntary contributions paid in by members of the Confederation of Independent Trade Unions in Bulgaria (CITUB) since February 1990 be included in the share of the confiscated assets to be transferred to the CITUB.

15. In a communication dated 20 May 1996, the Government indicates that a circular was addressed to the two trade union organizations in order to obtain information about the actual number of trade union members. Furthermore, the Minister of Finance issued an order and instructions to the Regional Governors related to the improvement of management of the State property included in the assets of Sofis Ltd., of which CITUB is a shareholder. According to the Government, these documents do not infringe trade union rights and freedoms and correspond to the state duties for fund control of the state budget for social needs and state property management. Furthermore, the Government indicated that it is always ready to take into account the claims and to satisfy the demands of trade union and employers' organizations which are connected to their needs in the framework of the current legislation, and the Government has relied and will rely on a useful dialogue with all of the social partners at national level.

16. The Committee takes note of this information. It notes with regret, however, that the Government has not provided any information concerning the progress made in enacting a new law defining the principles for a definitive allocation of the trade union assets and funds confiscated from the former Bulgarian trade unions. The Government is requested to keep the Committee informed of any developments in this regard and to provide copies of the final decisions concerning redistribution as soon as they are enacted.

Cases Nos. 1678 and 1781 (Costa Rica)

17. At its meeting in March 1996, the Committee made the following recommendations on the pending allegations [see 302nd Report, para. 255]:

As regards the collective dispute in the LACSA enterprise (Case No. 1695), the Committee requests the Government to keep it informed of the outcome of the appeal lodged by the representative of the Pilots' Association against the administrative resolution DRT-771-94 and on the decision adopted by the National Labour Inspectorate Board on the complaint submitted by the Pilots' Association against LACSA for having violated the collective agreement.
As regards the collective dispute in Geest Caribbean Limited (Case No. 1781), the Committee:

insists on the need that the agreement of 16 May 1994, signed by the parties, be fully applied, including clause 3 concerning dismissals;
requests the Government to ensure that trade union rights in the above-mentioned enterprise are fully respected, in particular protection against anti-union dismissals, the right of trade union officials to enter into contact with plantation workers with due respect for property rights and the guarantee that "standing workers' committees" (non-unionized) do not undermine the role of the representative trade unions in the enterprise. The Committee requests the Government to keep it informed of the measures it takes in this respect and the outcome of the appeal lodged with the Constitutional Chamber against the administrative decision of 24 May 1994;
requests the Government to keep it informed of the evolution of proceedings under way concerning the acts of violence which occurred in May 1994 during the collective dispute in question, and to send it the text of the sentence handed down. The Committee insists that an investigation be undertaken on the allegations of acts of violence which were said to have been committed as much by the workers as by the police.

18. In a detailed communication of 2 September 1996, the Government indicated a number of steps which had been taken by the Ministry of Labour to resolve the dispute concerning the LACSA enterprise. The Government also mentioned the appeals and procedural tactics used by the parties which has delayed the outcome of the administrative procedure concerning the violation of the collective agreement, and which is still not over. As concerns the collective dispute at Geest Caribbean Ltd., the Government indicated that, in response to the Committee's recommendation, it carried out conciliation and mediation between the parties so that the agreement of 16 May 1994, including section 3 concerning dismissals, be applied. The Government pointed out, however, that Geest Caribbean Ltd. ceased operating in May 1996; it has retained its legal personality but does not employ any workers in the country. The Government adds that, by Circular DM 1428-96 of 19 June 1996 (a copy of which was annexed), the Ministry of Labour gave instructions to the Labour Inspectorate for inspectors to ensure that trade union rights be fully respected in Geest Caribbean Ltd. and in the other companies in the country, including on the plantations, as well as to guarantee that "the standing workers' committees" (not unionized) not interfere with the role of representatives at the undertaking. Furthermore, circular DM 2408-95 of 21 December 1995 gives priority as a matter of urgency to any investigative procedures concerning disloyal work practices contrary to trade union rights, which should be transmitted immediately to the National Labour Inspectorate Board. The Government also indicates that it is not aware of any appeal before the Constitutional Court which was referred to by SITGAH. As concerns the evolution of the procedure concerning the violent acts which occurred in May 1994 during the collective dispute at Geest Caribbean Ltd., the Government points out that the accused (former workers in the company and most of them Nicaraguans without papers) have not been found and that the procedures have been suspended, except as concerns one of them which was found to be without basis.

19. The Committee takes note of this information. As concerns the collective dispute at LACSA (Case No. 1695), the Committee, while noting the delaying tactics evoked by the Government, deplores the delay in the administrative procedure concerning the violation of the collective agreement and recalls that the facts alleged in the complaint date to 1992. The Committee emphasizes that procedures concerning violations of Convention No. 98 should be rapid so that the necessary measures of redress may be truly effective. An excessive delay in the examination of cases and, in particular, the absence of a decision for a long period of time is equivalent to the denial of justice and thus to the negation of trade union rights for the persons concerned.

20. As concerns Case No. 1781, the Committee takes note with interest of the steps taken by the Ministry of Labour along the lines of some of the recommendations previously made by the Committee concerning the collective dispute at Geest Caribbean Ltd. The Committee also takes note of the information provided by the Government according to which the penal procedures have been suspended since the persons concerned have not been found. The Committee notes that the company in question ceased operating in May 1996 and requests the Government to indicate, according to the terms of the legislation, the possibilities for applying the agreement of 16 May 1996 given the recent cessation of activities by the company in question.

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

21. As regards Case No. 1594 (Côte d'Ivoire), the Committee had requested the Government to endeavour to take measures so that the workers dismissed at Irho Lame as a result of their legitimate trade union activities are reinstated in their posts [see 300th Report, para. 17, approved by the Governing Body in November 1995].

22. In a communication of 14 June 1996, the World Confederation of Labour (WCL) explained the reasons for which "Dignité" rejected the Government's proposals on the reinstatement of the striking workers at Irho Lame. It stated that the proposals were unfair and discriminatory, since prior to the arrival of the direct contacts mission in April 1994 the Government had proposed that only 200 workers out of a total number of 618 be reinstated. In January 1995, following the visit of the direct contacts mission, it was proposed that only 100 workers be reinstated at a rate of 25 every six months over a period of two years. The other striking workers (blue-collar workers) were not reinstated and were deprived of their rights. Furthermore, the WCL adds that nothing has been done to reinstate the workers in Blohorn, Sodeci, Scaf Bassam, Nelci and Soat. It emphasizes that none of the recommendations made by the direct contacts mission concerning the autonomous port of Abidjan have been implemented.

23. In a communication of 4 September 1996, the Government states that "Dignité" won the elections in several enterprises and that since the return of trade union pluralism it has been associated with worker-related issues. The Government explains that the initiative for elections of workers' representatives lies with employees and that the labour inspector only intervenes if the employer fails to do so. The Minister for Employment guaranteed that the elections would be held in the autonomous port of Abidjan and the administration undertook consultations on this matter. In addition, in a letter of 10 May 1995 it informed the Chairman of the Dockers Trade Union (SEMPA) that SYLIDOPACI, a rival union with a number of members, must be allowed to exercise its trade union activities freely. Eventually, elections were held at Cosmivoire, Blohorn and Cotivo.

24. As regards the dispute at Irho Lame, the Government points out that legal action is being taken against Mr. Dabone Hassan and Mr. Diebre Boukari for violence and assault, that they were detained on 30 January 1995 and are awaiting trial by the investigating magistrate. The Government states that following the ILO mission, the Irho Lame management put forward a plan to reinstate 100 employees on a gradual basis, owing to economic difficulties. The plan was rejected by the Secretary-General of "Dignité" who requested the immediate reinstatement of all the workers who had been on strike for almost two years. The Government states that it has endeavoured to find a solution to the conflict.

25. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the elections of workers' representatives in the autonomous port of Abidjan, as well as of developments with respect to the reinstatement of the workers dismissed as a result of the labour disputes. Moreover, the Committee expresses its profound concern at the fact that several trade unionists, whose situation had been examined in Case No. 1846, are still being held in detention. It strongly reiterates the contents of its recommendation in paragraph 267 of its 302nd Report in which it requested the Government to take the necessary measures to ensure the immediate release of Dabone Hassan, Denemou Augustin, Karim Sawadogo and Kagambega Philippe. It urges the Government to keep it informed of the measures taken in this respect.

Case No. 1628 (Cuba)

26. When the Committee examined this case at its meeting in May 1993 (see 287th Report, paras. 268-282) it requested the Government to make an immediate pronouncement on the registration of the General Union of Cuban Workers (UGTC) -- which according to the Government is now called the Union of Cuban Workers (USTC) -- and to keep it informed of any measures adopted in this respect. In a communication dated 16 December 1993, the Government had criticized the recommendations made by the Committee and indicated, in particular, that the case lacked legal objectivity because the request initially made by Mr. Rafael Gutierrez Santos to the Minister of Justice (request for registration of a so-called trade union organization) was abandoned by a letter of 1 April 1992, which had been transmitted to the Committee. At its meeting in March 1994, the Committee took note of the Government's observations and decided to transmit them to the complainant organization so that it might provide any comments or information that it considered to be useful in this respect, and in particular, any documents proving effectively the request for registration of the organization concerned. [See 292nd Report, para. 21.]

27. In its communication of 30 June 1995, the International Confederation of Free Trade Unions (ICFTU) pointed out that, during the events which shook Cuba in the summer of 1994, thousands of Cuban citizens left the island, including Mr. Rafael Gutierrez Santos, president of the USTC. Recognition of the USTC as a trade union organization has still not been granted. Nevertheless, the activities of the organization have not been paralysed and its members elected a new executive committee on 13 September 1994. Furthermore, the ICFTU states that Mr. Rafael Gutierrez Santos had not requested the withdrawal of his request for registration, but had simply informed the Government of the change in the organization's name. In its communication of 31 May 1996, the ICFTU indicated that the USTC has still not been recognized, although it is prospering and has affiliates in many provinces of the country. The USTC claims to have 3,000 members. The ICFTU adds that Mr. Pedro Rubio Balbun, president of the USTC, has been the victim of a search by the Policy Police at his home, which is also the headquarters of the organization, and of a seizure of all documentation and of the basic resources indispensable to the proper functioning of the trade union organization.

28. In its communication of 12 September 1996, the Government states that, after analysing the contents of the two communications submitted by the complainant organization and after having undertaken relevant inquiries, it appears that the persons mentioned as leaders of the organization called "Union of Cuban Workers" do not qualify as unionists. This so-called trade union organization is not present in any work centre in the country and its officers have not been elected by any workers' collective. This situation leads one to believe that the Committee should limit itself to the contents of Convention No. 87 on freedom of association and the right to organize which protects workers in the exercise of their trade union rights and not persons who invoke the Convention, without fulfilling the minimum requirements for exercising a true trade union activity, by using a false image of unionists towards other ends. The Government recalls the provisions of the Labour Code which guarantee the right of workers to form unions without previous authorization, the right of assembly and the right to freely express one's opinions.

29. Furthermore, it was not possible to verify the truth of the search of the domicile mentioned in the ICFTU communications. The police services have no trace of such a search and no complaint has been made in this regard. As the arguments of the ICFTU are not well founded, the Committee should not artificially pursue the treatment of this case since it does not concern a trade union activity covered by Convention No. 87.

30. The Committee takes note of the information provided by the Government which does not contain any elements likely to modify the conclusions which it has made in its previous reports. The Committee deplores the fact that, since 1992, the USTC has not been legally recognized by the authorities, a matter which has nothing to do with its degree of representativeness. It insists that this independent organization, outside of the existing recognized trade union structure, be registered and allowed to function fully without discrimination. The Committee observes with concern that another case concerning Cuba (No. 1805) examined in this report also concerns the denial of recognition of an independent trade union organization. The Committee refers to the conclusions formulated in this case and in particular to the comments of the Committee of Experts requesting the Government "to guarantee in law and practice the right of all workers and employers, without distinction whatsoever, to establish independent organizations of their own choosing, outside any existing recognized trade union structure if they so desire (Article 2 of Convention No. 87) and the right to elect their representatives in full freedom (Article 3 of Convention No. 87)." [See Report III (Part A), ILC, 82nd Session, 1995, page 163.]

Case No. 1641 (Denmark)

31. As regards Case No. 1641 (Denmark), last examined at its November 1994 meeting [see 294th Report, paras. 39 to 77], the Committee has received a communication dated 19 June 1996, in which the complainant, the Danish Confederation of Professional Associations (AC), states that it has reached a settlement with the Minister of Labour concerning the legislation which imposed a wage ceiling on public job offers for the long-term unemployed. The Committee notes this information with interest.

Case No. 1860 (Dominican Republic)

32. As regards Case No. 1860 (Dominican Republic), the Committee requested the Government to forward to it details of the sentence handed down in respect of the soldier who shot the worker Alexander García during a demonstration, and also to conduct an investigation into the allegation concerning the attack on a young girl during another demonstration which took place on 18 September 1995. In its communication of 9 May 1996, the Government provides details of the outcome of the court martial in which Private Wagner Valentín Consuegra Rodríguez was sentenced to four months' imprisonment for involuntary homicide. The Committee takes note of this information. It also takes note of the fact that the authorities have been unable to verify whether or not the allegations concerning the attack against a young girl during the demonstration of 18 September 1995 are true, since the name of the person concerned was not known.

Case No. 1824 (El Salvador)

33. The Committee examined this case at its March 1996 meeting [see 302nd Report, paras. 142 to 160]. At this occasion, the Committee presented the following recommendations:

The Committee requests the Government to take the necessary steps to carry out an independent inquiry to look into the allegations concerning the death of the trade unionist, Mrs. Julia Esperanza Quintanilla (according to the complainant organization the management of the enterprise refused to the trade unionist the possibility of seeking medical assistance), and in the event that these facts are confirmed, to bring appropriate action before the courts in order to determine responsibilities and punish the guilty. The Committee requests the Government to keep it informed in this respect.
The Committee requests the Government to inform it whether Mr. Juan José Huezo is still in prison and, in the affirmative, to explain what charges have been brought against him. Similarly, the Committee requests the Government to release him immediately if his detention is connected with his trade union activities. The Committee requests the Government to keep it informed in this respect.
As regards the alleged arrests (by the security staff in the enterprise) of a member of the trade union executive and two workers of the Sanobang Wool Apparel El Salvador SA enterprise and Elisio Castro Pérez, Secretary-General of the trade union of the textile factory, Mandarin International, as well as the physical attacks on the trade union official of the same trade union, Mrs. Marta Rivas (both events allegedly occurred on 15 May 1995), the Committee requests the Government to take steps to carry out an inquiry into these allegations and, if it is ascertained that the trade unionists in question were unlawfully deprived of their freedom -- even for a short period of time -- and that Mrs. Rivas was physically attacked by the security guards of Mandarin International, to bring appropriate action before the courts so that the guilty should be duly punished. The Committee requests the Government to keep it informed in this respect.
Concerning the allegations relating to the anti-union dismissals of 18 workers in the Gabo SA enterprise and 150 trade union members in the Mandarin International enterprise, the Committee requests the Government to take steps immediately to carry out an inquiry in the enterprises in question and, in the event of noting that the alleged dismissals were based on the fact that those concerned were trade union officials or trade unionists or that they had carried out lawful trade union activities, to take steps to ensure that the dismissed workers might be immediately reinstated in their jobs if they so desire. The Committee requests the Government to keep it informed of any development in this regard.
The Committee requests the Government to carry out as a matter of priority an inquiry concerning the threats made against trade unionists in two enterprises noted in the allegations in the free zones and to take strong measures to provide effective protection for the workers in these enterprises. The Committee requests the Government to keep it informed in this respect.

34. In a communication dated 17 July 1996, the Government states that Mr. Huezo was detained on charge of aggression against a national police officer as well as for illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work. In addition, the Government indicates that Mr. Huezo was released on 20 April 1996 since the penalties in case he is found guilty of such offences is less than three years of prison. There would still be an additional charge against this trade unionist based on allegations of, inter alia, false testimony, sequestration, murder threats, illegal detention, defamation and damages and interests, filed in November 1994.

35. The Committee notes this information and requests the Government to keep it informed of the legal proceedings against Mr. Huezo. The Committee notes that the Government, on the other hand, has not provided any information with regard to the other allegations examined, and hopes that the Government will do so in the near future.

Case No. 1468 (India)

36. As regards Case No. 1468 (India) relating to seven different trials concerning serious incidents that had taken place in 1988 in the State of Tripura where charges had been brought against trade unionists, the Committee last examined this case at its November 1995 meeting [see 300th Report. para. 20]. The Committee had then noted that the prosecution had withdrawn the charges in three trials resulting in the closing of these cases and that one other trial had led to the conviction of four persons who, moreover, had pleaded guilty. The Committee had further noted that the three remaining trials were still pending in the courts. In a communication dated 3 September 1996, the Government states with regard to the three remaining trials, that the Sub-Divisional Magistrate had dropped the charges in one case and that the accused persons had been acquitted following the trials in the two other cases. The Committee takes notes of this information with interest.

Case No. 1817 (India)

37. This case concerned the promulgation by the Government of the Central Civil Services (Recognition of Service Association) Rules of 1993 (the Rules). At its March 1996 meeting [see 302nd Report, paras. 297 to 328), the Committee requested the Government to take steps to amend some provisions of the Rules insisting, inter alia, on the fact that restrictions limiting all public servants to membership of unions confined to that category of workers are admissible if their organizations are not restricted to employees of any particular ministry, department or service and if the first-level organizations may freely join federations and confederations of their own choosing.

38. In a communication dated 30 September 1996, the Government, while recalling that India has not ratified the relevant Conventions on freedom of association, insists on the special status of its civil servants according to which they have to be differentiated from other workers. The Government recalls that civil servants enjoy a high degree of job security and that they have to remain totally impartial in the execution of their work. The Government adds that civil servants' legitimate concerns such as job security, wages, health and other areas of welfare are adequately taken care of by their terms of appointment and the Rules. They do not need the protection granted by general labour legislation to other workers. The Government concludes that it is not in a position to take any step which would tend to dilute the existing distinction between civil servants and industrial workers and is not able therefore to go along with the Committee's recommendations.

39. Noting this information and insisting on the fact that the right of all workers, including state employees, to form and join organizations of their own choosing is one of the basic principles of the ILO, the Committee cannot but express the firm hope that the Government will reconsider its view on this matter in the near future.

Case No 1840 (India)

40. At its March 1996 meeting, the Committee requested the Government, inter alia, to take measures to ensure that the competent authorities received instructions, so that during the holding of public meetings, the police resort to the use of force only in situations where law and order were seriously threatened. The Committee also requested the Government to ensure that an independent inquiry was held without delay to determine the justification for the action taken by the police in the Choibari tea estate, Dhuri District, Assam State on 1 May 1995 [see 302nd Report, paras. 329 to 354].

41. In a communication dated 20 June 1996, the Government states that the Committee's recommendation concerning the use of force by public authorities was brought to the notice of the state government of Assam for compliance in future.

42. Furthermore, with regard to the necessity to hold an independent inquiry to establish the circumstances surrounding the 1 May 1995 events at the Choibari tea estate, the Government adds that the inquiry already conducted by the State Labour Commissioner complied with the requirement of independence. The Committee takes note of this information. It expresses the hope that, in future, workers and their organizations will be able to hold public meetings on the occasion of May Day.

Case No. 1552 (Malaysia)

43. When it last examined this case at its November 1995 meeting [see 300th Report, para. 25], the Committee had noted that the High Court had granted an application for an order to quash an industrial court award which had dismissed the claims for reinstatement and compensation presented by 21 dismissed workers of Harris Solid-State Sdn-Bhd, and that it had also granted an application by these workers that their case be retried in another division of the Industrial Court. The Committee had requested the Government to keep it informed of the Industrial Court's decision.

44. In a communication dated 7 October 1996 the Government indicates that the Court of Appeal has ordered the reinstatement of the 21 workers dismissed from Harris Solid-State Sdn-Bhd, but that the employers are expected to file an appeal to the Federal Court.

45. The International Metalworkers' Federation (IMF) also supplied information concerning the Court of Appeal judgement in communications dated 21 August and 7 October 1996. According to the IMF's latest communication, all 21 union activists were indeed reinstated and reported for work on 1 October 1996. They apparently have not yet received, however, the back wages for the last six years which were ordered by the Court.

46. The Committee notes this information with interest and requests the Government to keep it informed of any development as regards the implementation of the Court of Appeal judgement.

Case No. 1698 (New Zealand)

47. The Committee last requested the Government at its meeting in June 1996 (304th Report, paragraphs 14-17) to keep it informed of any significant judgements handed down concerning the implementation of the Employment Contracts Act (ECA) as well as of the developments in the discussion to be held with the New Zealand Council of Trade Unions (NZCTU) and New Zealand Employers' Federation (NZEF). In communications dated 18 June and 25 October 1996, the Government provided further judicial decisions relevant to issues addressed in the Capital Coast Health case.

48. The Government specifies that two further decisions has been issued by the Court of Appeal relating to communications between the employers and employees during negotiations: New Zealand Fire Service Commission v. Ivamy and Ors, CA 145/95 and Airways Corporation of New Zealand Ltd. v. New Zealand Airline Pilots' Association Industrial Union of Workers Inc. and Dallas Richard Bean and Ors, CA 251/95 (ALPA). In both decisions, the Court of Appeal confirmed the principle that if an employer agrees to negotiate, the latter must do so with the employees' authorized representative, in accordance with its decision in Capital Coast Health. The Court of Appeal, however, overturned the Employment Court's decision in both cases to issue an injunction against the employer reasoning that the subject-matter and target of any attempted persuasion are the significant elements in determining whether direct communication with employees is inconsistent with the employer's obligation under section 12(2) of the Employment Contracts Act. Thus, if the communications in question are simply an attempt to persuade employees as to the reasonableness of the employer's stance on a particular issue which all parties understand is the subject of negotiation between representatives, as was determined in both cases on appeal, then it need not amount to a failure to recognize an authority in contravention of section 12(2). On the other hand, the Court of Appeal confirmed that it would be contrary to the Act if employers attempted to exclude the representative and enter into contracts directly with the employee, to persuade employees to withdraw an authority and to call into question the agent's authority to represent employees. In its examination of cases brought under section 12(2), the Court's determination of whether communications are permissible will depend upon the nature of the employment relationship in question, the general background to, and history of the complaint, and the particular circumstances in which the complaint arose.

49. In its latest communication, the Government further provides two recent Employment Court decisions which touch upon the interpretation of the ECA. The Government also indicates that it has had informal discussions with the central organizations of employers and employees which have included, at a general level, some aspects relating to the statutory bargaining framework. The Government adds that it will keep the Committee informed of the outcome of the discussions.

50. The Committee takes note of this information and requests the Government to continue to keep it informed of any other relevant judgements rendered concerning the implementation of the Employment Contracts Act as well as of any developments in the discussions held with the NZCTU and the NZEF in this regard. Nevertheless, the Committee reaffirms its previous recommendations and requests the Government to take the necessary measures to implement these recommendations.

Case No. 1726 (Pakistan)

51. During its last examination of this case in November 1994 [see 295th Report, para. 23], the Committee had urged the Government to take the necessary steps to ensure an independent and impartial investigation into the reported arrest, detention and torture of workers at the Daewoo Motorway Construction Project and to keep it informed of the findings and the measures taken to redress the situation. The Government was also requested to keep the Committee informed of the steps taken to ensure the registration of the Awami Union and to amend its legislation in order to ensure the right to organize and to bargain collectively for workers, in accordance with Conventions Nos. 87 and 98.

52. In a communication dated 14 May 1996, the Government indicates that the Labour Appellate Tribunal has upheld the decision of the Labour Court ordering the competent authority to register the Awami Union and that the registration certificate has now been issued.

53. The Committee takes note of this information with interest. It notes however that the Government has not replied to the Committee's request that an independent investigation be held to look into the reported arrests, detention and torture of workers. The Committee would therefore once again urge the Government to take the necessary steps to ensure that these matters are the subject of an independent investigation and to keep it informed of the outcome. The Government is also requested to continue to keep the Committee informed of the steps taken to amend the legislation so as to ensure the right of workers to organize and bargain collectively.

Case No. 1826 (Philippines)

54. During its last examination of this case in March 1996 [see 302nd Report, paras. 386-414], the Committee had urged the Government, inter alia, to take the appropriate steps immediately to ensure that a certification election was conducted at the Cebu Mitsumi Inc. in Danao City.

55. In a communication dated 31 May 1996, the Trade Union Congress of the Philippines (TUCP) provided information concerning the non-implementation by the Government of the Committee's recommendations. In particular, the TUCP states that a certification election was set for 24-25 April 1996 but very few workers were able to cast their votes. According to the TUCP, the management of Cebu Mitsumi took over the control of the election proceedings by determining the place where voting would take place, the number of workers who were allowed to vote at a given time and the manner in which the voting would be conducted. Out of a list of eligible voters equalling approximately 9,000 workers, only 300 chosen by the management were actually able to vote on the first day of the certification election and the same again the following day. The TUCP transmitted copies of worker affidavits testifying that management sent them home on the day prior to the election indicating that the 24th and 25th were "forced leave days". The TUCP adds that on the second day, about 100 "goons" of Cebu Mitsumi swarmed the entrance gate and drove away company employees waiting to vote. Given these circumstances, the Associated Labor Unions (ALU) -- TUCP representatives moved for the suspension of the certification election proceedings and were harassed by the company goons as they left the premises for their safety. The Department of Labor and Employment (DOLE) and the management of Cebu Mitsumi, however, continued with the election despite the absence of union representatives. ALU-TUCP has brought the matter to the attention of the Secretary of Labor and Employment for immediate and appropriate action.

56. The Committee takes note of this information. It deeply regrets that the Government has not replied to the allegations made by the TUCP. It urges the Government to establish immediately an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi and to keep the Committee informed of the findings and, if the allegations prove to be true, to take the necessary measures to ensure a new certification election with all the assurances of impartiality and non-interference. The Government is requested to keep the Committee informed in this regard.

Case No. 1785 (Poland)

57. In its 302nd Report, approved by the Governing Body in March 1996, the Committee requested the Government to keep it informed of any progress concerning the restitution of trade union property confiscated during the period of martial law (see paragraphs 57-59).

58. In a communication dated 12 August 1996, the Government informs that the Diete adopted amendments to the Act of 25 October 1990 on the restitution of trade union assets. The new law was promulgated on 4 July 1996 and entered into force on 4 August 1996. It takes into account the Constitutional Tribunal decision of 25 February 1992 and allows the Government to put into place a procedure for the redistribution of assets according to which those of the former Central Council of Trade Unions (CRZZ) will be divided into two equal shares between the NSZZ Solidarnosc and the Polish Trade Union Alliance (OPZZ). Since an agreement concerning the distribution of assets was not reached between the two and pursuant to the provisions of the new legislation, the Minister of Labour has to establish a list of the assets and decide, by executive order in consultation with both parties, which assets will belong exclusively to one or the other. The executive order should be published before 30 June 1996.

59. The Committee notes this information. It requests the Government to ensure that there will be an equitable redistribution of assets between the two trade union confederations in accordance with the Committee's previous recommendations. It also requests the Government to keep it informed of any progress concerning the final redistribution of trade union assets and to communicate a copy of the executive order of the Minister of Labour.

Case No. 1788 (Romania)

60. In its 302nd Report approved by the Governing Body in March 1996 (paragraph 60), the Committee had requested the Government, inter alia, to keep it informed of the outcome of the legal proceedings concerning three trade unionists who had participated in the railway strike in 1993 and to inform it whether their dismissal has been revoked. In a communication dated 20 May 1996, the Government indicates that the President of the National Railway Company of Romania (SNCFR) confirmed in a letter dated 8 May 1996 that, pursuant to their requests, Ioan Vlad, Nicolae Vlad and Francisc Ungureanu were reinstated in their jobs on 23 November 1995 and that they exercise functions corresponding to their qualifications and seniority. The Committee notes this information with interest.

Case No. 1581 (Thailand)

61. As regards Case No. 1581 (Thailand), the Committee had requested the Government, at its meeting in November 1995 [see 300th Report, para. 34], to furnish a copy of the State Enterprise Labour Relations Bill so that it might assess its contents in the light of freedom of association principles and to keep it informed of the developments relating to the procedure for the adoption of this Bill in Parliament.

62. In a communication dated 11 July 1996, the Government indicates that the Bill in question passed the second and third reading of the House of Representatives on 17 April 1996. The Senate has approved the principles of the Bill and set up an ad hoc committee to scrutinize the Bill before submitting it to the full Senate for adoption.

63. The Committee takes note of this information. Furthermore, it has taken note of a recent draft of the Bill in question which has been brought to its attention and which still diverges from the principles of freedom of association on a number of important points, particularly as concerns the right for workers to establish and join organizations of their own choosing and to carry out their activities without interference. The Committee would draw the Government's attention to the availability of ILO technical assistance for facilitating the search for solutions to these divergencies. It trusts that the Bill will be adopted in the near future and that, in its final form, it will be in conformity with freedom of association principles. It requests the Government to keep it informed of any progress in this regard.

Case No. 1856 (Uruguay)

64. During its last examination of this case, in March 1996, the Committee made the following recommendation: "Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses SA enterprise, the Committee requests the Government to conduct an inquiry into the reasons for the dismissals and, should it find that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on the subject" [see 302nd Report, para. 439].

65. In communications dated 9 September and 4 October 1996, the Government indicates that, having learned of the decision of staff restructuring in the enterprise, the National Labour Directorate convoked the representatives of the Uruguayan Health Federation (FUS) and of the Workers' Central (PIT-CNT) to inform them of the enterprise's decision. The Government states that, according to the enterprise, the decision to restructure its staff had to be taken due to various economic conditions and that it resulted in the reduction of its staff by 8 per cent (approximately 110 employees) and that a majority of those dismissed were not unionized. The Government adds that, neither the local unions (AFP), nor the Uruguayan Health Federation (FUS), nor the Workers' Central (PIT-CNT), requested intervention from the Ministry of Labour and Social Security. Finally, the Government adds that, in response to the Committee's request, the General Inspectorate for Labour and Social Security is beginning an investigation, the results of which will be provided to the Committee. The Committee notes the Government's statement and awaits the information promised.

Case No. 1797 (Venezuela)

66. The Committee examined this case at its March 1995 meeting [see 297th Report, paras. 127 to 136], and suggested on that occasion that the Government withdraw a bill which was before the National Congress, concerning the right of workers' unions, federations and confederations to exercise internal democratic procedures, since it contained certain provisions which were inconsistent with the principles of freedom of association. The Committee also reminded the Government that the technical assistance of the Office was at its disposal, if it so wished, for the preparation of a new bill. By a communication of 2 August 1996, the Government forwarded a new bill: "Act respecting the democratic rights of workers within their trade unions, federations and confederations". The Committee points out that the new bill contains several provisions which are contrary to trade union autonomy and regulates in too much detail the electoral procedure of workers' organizations and the conditions of eligibility for trade union office, and once again reminds the Government that the technical assistance of the Office is at its disposal if desired.

Case No. 1822 (Venezuela)

67. During its last examination of this case by the Committee in June 1996 [see 304th Report, paras. 499-511], an allegation remained pending concerning the closure of the Editores El Nuevo Pais CA for a false financial crisis and returning to publish the newspaper El Nuevo Pais one month later with a different staff, in the absence of any trade union or collective agreement. The Committee made the following recommendation: "The Committee considers that the closure of Editores El Nuevo Pais CA may have been for anti-union reasons and calls on the Government to conduct an inquiry in this regard and, if such intentions are proven, to take measures, through legal proceedings, to compensate the National Press Trade Union and its former members in the enterprise concerned for the prejudice sustained, including by reinstating them in their jobs if they so wish. The Committee requests to be kept informed in this regard."

68. In a communication dated 7 June 1996, the Government stated that as soon as the discussions concerning the draft collective labour agreement between the National Press Trade Union (SNTP) and Editores El Nuevo Pais, which lasted six months, arrived at an impasse, the union requested that the conciliation discussions be turned into dispute proceedings against the company. In the meantime, the company was closed for reasons of a financial nature. During the negotiations within the dispute proceedings, once the Conciliation Board was named, the workers put an end to their relationship with the company, reaching a compromise settlement (with final legal effect), in conformity with the Basic Labour Act. As a result, these workers were dismissed with compensation, as the settlement had been approved by the Labour Inspectorate (a copy of the labour settlement was attached).

69. The Committee takes note of this information. Nevertheless, the Committee insists on the importance of carrying out investigations into complaints of discriminatory practice in order to redress any wrongs if their anti-union nature is proven and to apply the sanctions provided in the legislation.

* * *

70. Finally, as regards Cases Nos. 1618 (United Kingdom), 1685 (Venezuela), 1712 (Morocco), 1719 (Nicaragua), 1723 (Argentina), 1725 (Denmark), 1777 (Argentina), 1783 (Paraguay), 1791 (Chad), 1793 (Nigeria), 1795 (Honduras), 1799 (Kazakstan), 1806 (Canada/Yukon), 1807 (Ukraine), 1809 (Kenya), 1811 (Paraguay), 1816 (Paraguay), 1818 (Zaire), 1819 (China), 1821 (Ethiopia), 1830 (Turkey) and 1837 (Argentina), 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.

* * *

Case No. 1871

Definitive report

Complaint against the Government of Brazil

presented by

the World Federation of Trade Unions (WFTU)

Allegations: Discrimination against a trade union organization

71. The complaint was sent in a communication from the World Federation of Trade Unions (WFTU) dated 20 February 1996. The WFTU sent additional information in a communication dated 19 March 1996. The Government sent its observations in a communication dated 31 May 1996.

72. 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

73. In its communications dated 20 February and 19 March 1996, the World Federation of Trade Unions (WFTU) alleges that its affiliate, the General Confederation of Workers (CGT) of Brazil, is suffering anti-union discrimination at the hands of the Government, which has excluded it from the country's tripartite bodies (the Social Security and Health Council, the Length of Service Guarantee Fund Council and other tripartite bodies in which the other trade union confederations participate). In addition it has not included CGT representatives among the delegates to sessions of the International Labour Conference, inclusive of the 83rd Session (1996) in which the CGT should have legitimately participated as official workers' delegate in keeping with the established order of rotation.

74. The WFTU explains that the CGT was established in 1986, that it represents over 8 million members, and to date has held three national congresses. The third of these took place in September 1994 in São Paulo, with the participation of 811 national trade union organizations (trade unions, federations and confederations), and international trade union delegations from 40 countries in Europe, Africa, Asia and Latin America which participated as observers. In addition, representatives of the Brazilian authorities, Parliament and political parties were present at the opening of the third congress.

75. The WFTU adds that the CGT is a third-level representative organization, made up of first and second-level trade union bodies, which carries out considerable activities in Brazil through various social programmes such as: (a) food programmes; (b) health programmes and AIDS prevention programmes; (c) literacy programmes and skills-enhancement programmes for workers. These activities are governed by an agreement with the Ministry of Education and Culture and are supported by individual states. The project contributed to the training of over 6,000 workers in 1994, and 3,200 in 1995; (d) other CGT activities have been recognized and acclaimed by various social institutions.

B. The Government's reply

76. In its communication of 31 May 1996 the Government explains that the State of Brazil does not interfere in the nomination of workers' representatives, the membership of tripartite councils or the composition of delegations to sessions of the International Labour Conference or other international tripartite technical meetings.

77. The Government adds that attempts to include the General Confederation of Workers among the organizations invited to designate a representative was categorically refused by the other Brazilian trade union confederations. The Government attaches a letter from these three confederations opposing the nomination of a CGT representative as a delegate to the 80th Session of the International Labour Conference (1993) which states that "everyone is aware that it does not fulfil any of the representation criteria". The Government concludes by saying that it is complying with article 3, paragraph 5, of the ILO Constitution and that it carries out consultations with the most representative employers' and workers' organizations and nominates delegates to the International Labour Conference in agreement with such organizations.

C. The Committee's conclusions

78. With regard to the matter of not nominating a representative of the General Confederation of Workers (CGT) as a member of the Brazilian delegation to the International Labour Conference, the Committee recalls that: "The question of representation at the International Labour Conference falls within the competence of the Conference Credentials Committee" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 659]. The Committee also wishes to refer to the conclusions presented by the Credentials Committee in 1996, following an objection by the General Confederation of Workers, which are quoted below:

The Committee wishes to point out that it is the duty of the Government to take all reasonable steps to evaluate the representative character of the different organizations in accordance with international law and practice and that the Government had an obligation to consult all the most representative organizations pursuant to article 3, paragraph 5, of the ILO Constitution. However, since the objecting organization had not provided any evidence in support of its objection, the Committee decided not to uphold it. [See International Labour Conference, Provisional Record 5B, 83rd Session, Geneva, 1996.]

79. As for the exclusion of the General Confederation of Workers (CGT) from the country's tripartite bodies, the Committee notes the Government's general statement that the State does not interfere in the nomination of workers to be included in tripartite councils, and its reference to the opinion of the other three national confederations which maintain that the CGT does not fulfil any of the representation criteria; the complainant organization has however indicated that the CGT represents over 8 million members and that at its most recent congress 811 trade union organizations participated (trade unions, federations and confederations). The Committee concludes that the CGT's view of the extent of its representation is not shared by the other three confederations, or, and here the facts speak for themselves, by the Government (which has excluded it from national tripartite bodies). The Committee recalls that "it was not called upon to express an opinion as to the right of a particular organization to be invited to take part in joint or consultative bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association" [see Digest, op. cit., para. 942]. However, the Committee stresses the principle whereby "The determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" [see Digest, op. cit., para. 314]. As neither the Government nor the complainant has indicated the level of representation of the General Confederation of Workers with respect to the other trade union confederations, or whether any legal procedures exist to determine the representation of existing trade union confederations, the Committee requests the Government to ensure that decisions relating to the composition of national tripartite bodies take this principle duly into account.

The Committee's recommendation

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

The Committee requests the Government to ensure that decisions relating to the composition of national tripartite bodies take into account the principle whereby the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.

Case No. 1765

Definitive report

Complaint against the Government of Bulgaria

presented by

the National Trade Union (NTU)

Allegations: Excessive criteria for determining representativeness
of workers' organizations at the national level

81. The complaint in this case is contained in a communication from the National Trade Union (NTU) dated 21 February 1994. The complainant later sent additional information in a communication dated 31 March 1994. The Government sent its observations in a communication dated 18 May 1995.

82. At its June 1995 meeting, the Committee decided to postpone the examination of this case and requested the complainant organization to send additional information [see 299th Report, para. 5]. The complainant organization sent the information requested in a communication dated 15 November 1995. The Government sent new observations in a communication dated 9 May 1996.

83. Bulgaria 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

84. The National Trade Union (NTU) alleges that the public authorities have interfered in the admission of national organizations of workers and employers to the National Tripartite Cooperation Council. According to the complainant, Decree No. 7/22.01.1993 of the Council of Ministers, respecting the principles and conditions for admission to the National Tripartite Cooperation Council, violates Conventions Nos. 87 and 98 (ratified by Bulgaria) in that it requires national trade union organizations to be established in the former urban districts instead of administrative districts and in half of the sectors of activity as defined in 1986, without taking account of new sectors that may emerge with changes in the economy.

85. The complainant explains that the Decree was adopted pursuant to section 3 of the Labour Code, as amended, which entered into force on 1 January 1993, and provides as follows:

Section 3. Tripartite cooperation

Paragraph 3. National workers' organizations may be considered as representative if their membership comprises at least 50,000 workers, over half of the sectors of activity, and if they comprise national and regional bodies.

86. The complainant specifies that Decree No. 7 of 22 January 1993 contains restrictive conditions for admission to the National Tripartite Cooperation Council which have the effect of preventing it from concluding collective agreements and limiting the possibility of making trade union demands to only two national representative trade unions in the country, CL Podkrepa and the Confederation of Independent Trade Unions of Bulgaria (CITUB).

87. The complainant trade union provides the text of Decree No. 7, which lists the criteria for representativity, that is the requirement to submit a list of national and regional bodies and the names and addresses of their officers; the minimum number of members; the number of organizations in the sectors of activity based on the sectors of national activity as classified in 1986; the branch structure of workers' organizations (50 local trade unions per branch, with each local trade union required to have at least five members); and the local structure of national workers' organizations (required to have regional bodies in 80 per cent of the former urban districts and 50 enterprise trade unions at the district level, with each enterprise trade union required to have at least five members).

88. The complainant organization states that it has filed an appeal with the Supreme Court for the repeal of Decree No. 7 of 1993.

B. The Government's reply

89. The Government acknowledges that on 4 May 1994 the complainant organization lodged an appeal with the Supreme Court to repeal section 3, paragraph (2), of Decree No. 7 of 1993 which empowers the Council of Ministers to decide on the admission of the most representative organizations upon the proposal of the President of the National Tripartite Cooperation Council. However, the Government encloses the judgement (No. 464) handed down on 23 March 1995 by the Supreme Court, which rejected this appeal.

90. In its judgement, the Supreme Court states that section 3, paragraph (2), of the Decree in question provides for a structure by branch and by territorial district of trade unions. According to the judgement, this provision only establishes a minimum standard for the membership of trade unions and their territorial bodies. It is appropriate to take account of the presence of the territorial structures of trade unions throughout the country if the impact on workers is to be indisputable. This criterion ensures that agreements concluded at the national level are truly "national".

91. The Government adds that the Decree does not restrict the trade unions' freedom to choose their structures and merely lists the quantitative criteria for representativity for purposes of tripartite cooperation. Lastly, the Government states that under Decree No. 7, the criteria that workers' organizations must meet in order to be considered as most representative at the national level are as follows: a minimum number of 50,000 members; these members to be employed in over half of the sectors of activity defined in 1986; territorial coverage of at least 80 per cent of urban districts; they must have national and regional bodies; they must have 50 local trade unions per branch of activity, with each local trade union required to have at least five members; and they must have 50 local organizations at the district level.

C. Additional information supplied by the complainant

92. In its communication dated 15 November 1995, the complainant organization states that its appeal to the Supreme Court for the repeal of Decree No. 7 of 1993 respecting the procedure for recognizing representativity of trade union organizations was turned down. It states further that it has taken steps, through some Members of Parliament, aimed at the amendment of certain provisions of the Labour Code, that it had proposed a draft to this effect, which had been approved by the Commission on Human Rights and was now under consideration by the Commission on Labour and Social Problems. It explains that the motives for introducing the proposed amendments and additions to the Labour Code were based on the fact that the current Code allows discrimination on the basis of trade union membership, which hampers the founding of trade union organizations other than those already recognized as representative at the national level. The complainant organization states that notwithstanding the fact that the Labour Code provides for the possibility of nominating organizations that are representative at the branch and regional levels, this cannot be applied in practice. It adds that the enforcement of decrees runs counter to the right of association, in violation of ILO Convention No. 26 (the Minimum Wage-Fixing Machinery Convention, 1928) and the Labour Code.

93. Specifically, the complainant organization points out that the most serious violations may be classified as follows:

collective agreements only protect the rights of members of the trade unions CITUB and CL Podkrepa, the most representative organizations (the complainant organization cites examples of provisions of collective agreements in different sectors, some of which refer only to members of the most representative organizations, stating, for example, that the employer shall not contract more favourable terms of payment with workers and employees for whom the collective agreement is not valid);
discriminating terms for joining a collective agreement (the complainant organization cites examples of collective agreements in different sectors which state, for example, that "the employer shall not have the right to sign with members of his personnel who are not members of CL Podkrepa and CITUB, more favourable individual agreements than those established in the present collective agreement");
coordination with the representatives of CITUB and CL Podkrepa of appointments and dismissals (the complainant organization cites examples of collective agreements in different sectors which state, for example, that "in the process of preparation of the list of workers or other employees to be discharged, one representative of CITUB and of CL Podkrepa each shall take part");
discrimination in connection with extra paid leave of trade union activists (the complainant organization gives the example of a collective agreement concluded in the mining sector which provides for the possibility of officers of CITUB and CL Podkrepa being granted paid leave for trade union activities);
conditions for carrying out trade union activities (the complainant organization gives examples of collective agreements in the mining and railway sectors which refer to the requirement to provide such conditions only to CL Podkrepa and CITUB);
collection of membership fees (the complainant organization cites a clause of a collective agreement, without specifying the sector, to the effect that "the employer agrees with the collecting of membership fees from the payroll in the enterprise he manages upon presenting by the organizations CITUB and CL Podkrepa a list of the names of their members");
appointment and dismissal of managers in branch enterprises; and
extra holidays and payments for trade union organizations (the complainant organization refers to two collective agreements in different sectors in which various benefits are provided only to members of the CITUB and CL Podkrepa).

94. The complainant organization states that Decree No. 7/22.01.93 should be repealed, as well as provisions of the Labour Code leading to an ambiguous interpretation and to the issuing of discriminatory normative acts, resulting in the impossibility of concluding agreements at the enterprise level. Lastly, it states that the quota of 50,000 members required for acquiring the status of representative trade union organizations is very high, given the fact that there are only 2.5 million workers in the country.

D. Additional reply of the Government

95. In its communication dated 9 May 1996, the Government refers in detail to the provisions of national legislation concerning representativity of workers' organizations. In addition, it refers to the provisions of Chapter 4 of the Labour Code dealing with collective agreements (the sections concerned provide, for example, that collective agreements shall not contain clauses that are more unfavourable for the workers or employees than those laid down by the law; define the parties to collective bargaining; and provide for the application of a collective agreement to the members of the organization that concluded it and for the extension of the collective agreement to workers who are not members of the organizations that concluded it). The Government states that if the complainant organization alleges infringements of legislation in the conclusion of a collective agreement in the food industry branch by the organizations CITUB and CL Podkrepa, it should, under the provisions of the Labour Code, bring the case before the courts, which are competent to settle labour disputes.

E. The Committee's conclusions

96. The Committee notes that in this case the complainant organization criticizes the criteria for representativity laid down in Decree No. 7 of 1993 for participation in the tripartite cooperation provided for in section 3 of the Labour Code, stating that it has the effect of preventing it from concluding collective agreements and restricting its right to present trade union demands (the complainant organization makes detailed reference to various agreements whose coverage is limited to the members of the most representative organizations). The complainant organization and the Government point out that the complainant organization appealed to the Supreme Court for the repeal of certain sections of Decree No. 7 of 1993, and that this appeal was rejected.

97. The Committee notes that the Government states that the Decree in question does not require organizations to change their structures, but merely lists the quantitative or other criteria for tripartite cooperation. These criteria are as follows: minimum membership of 50,000; members in over half the sectors of activity as defined in 1986; geographical coverage throughout the national territory of 80 per cent of urban districts; existence of national and regional bodies within the organization; existence of 50 local trade unions per sector of activity, with at least five members each; and existence of 50 local organizations corresponding to the urban districts.

98. In this respect, the Committee has upheld the principle that "the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 314]. The Committee considers that the criteria for representativity contained in Decree No. 7 of 1993 do not appear to be contrary to the above-mentioned principle, which allows the imposition of requirements related to the particular features of the systems of trade union structure and collective bargaining which exist in each country and that this obviates the need to involve a large number of organizations in negotiation at the national level. Specifically, as regards the requirement that a trade union organization have at least 50,000 members in order to be considered most representative at the national level (an excessive number, according to the complainant organization, given that there are only 2.5 million workers in the country), the Committee considers that this requirement is not disproportionate since it only represents 2 per cent of the national workforce.

99. The Committee notes further that, contrary to the statement of the complainant organization, the Decree in question does not prevent less representative organizations from bargaining at a level below the national level and concluding collective agreements (section 51 of the Labour Code stipulates that "when there is only one organization of workers and employees in an enterprise and it is not affiliated to any trade union organization that is recognized as being representative at the national, branch or occupational level, the employer shall in any case conclude a collective agreement with the trade union of workers and employees in question"). However, the Committee notes that the application of this provision can lead to a situation where a majority union in an enterprise cannot bargain collectively unless it is affiliated to an organization that is representative at the national level. In this respect, the Committee must recall the importance to be attached to the right to bargain collectively of the majority union in an enterprise. The Committee draws the attention of the Committee of Experts to this aspect of the case.

100. As regards the question raised by the complainant organization that some collective agreements apply only to the parties to the agreement and their members and not to all workers, the Committee considers that this is a legitimate option -- just as the contrary would be -- which does not appear to violate the principles of freedom of association, and one which is practised in many countries.

The Committee's recommendations

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

The Committee draws the Government's attention to the importance to be attached to the right to bargain collectively of the majority union in an enterprise.
The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

Case No. 1737

Definitive report

Complaint against the Government of Canada

presented by

the Canadian Association of Smelter and Allied Workers (CASAW)

Allegations: Biased conduct and interference by police
in a labour dispute

102. The Committee examined this case at its June 1994 meeting [see 294th Report, paras. 683-715, approved by the Governing Body at its 260th Session (June 1994)], at which it reached interim conclusions.

103. The Government's reply is contained in communications dated 20 December 1994 and 4 July 1996.

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

A. Previous examination of the case

105. The Committee recalls that the allegations in this case concerned the events surrounding a private sector labour dispute in the Northwest Territories of Canada. The Canadian Association of Smelter and Allied Workers (CASAW) complained about long delays incurred throughout the dispute resolution procedure and criticized the biased conduct of the Royal Canadian Mounted Police (RCMP) in their policing of the labour dispute and the investigation of the mine explosion which resulted in constant harassment of its leadership and membership. On this latter issue, the Committee had noted that the independent RCMP Public Complaints Commission had conducted an investigation into some 50 allegations and was preparing its report.

106. The Committee made the following recommendations in respect of these allegations [see 294th Report, para. 715]:

the Committee considers that the Government made every effort to help the parties to the dispute conclude a settlement through the various procedures established under the labour legislation, and that this aspect of the case does not call for further examination;
the Committee requests the Government to provide a copy of the report of the independent Royal Canadian Mounted Police (RCMP) Public Complaints Commission on the allegations regarding the conduct of members of the RCMP during the dispute, once it is published.

B. The Government's reply

107. In its communication of 20 December 1994, the Government transmitted a copy of the RCMP Public Complaints Commission's final report. The Government indicated, however, that this report dealt with 43 out of the 45 allegations raised and that the Chairman of the RCMP Public Complaints Commission (hereinafter, the Complaints Commission) had decided to conduct a public hearing into the two remaining allegations. This hearing was scheduled to take place in February 1995.

108. On 4 July 1996, the Government transmitted the final report of the Complaints Commission on the remaining two allegations.

109. The two reports of the Complaints Commission amount to approximately 130 pages of detailed investigation into the complaints made on 9 November 1992 by the President of CASAW concerning the allegedly discriminatory and intolerable treatment by the RCMP against CASAW's members throughout a five-month period during a labour dispute with Giant Mine.

110. The RCMP Act authorizes the Chairman of the Commission, where the Chairman considers it advisable in the public interest, to investigate any complaint made under Part VII of the Act. The factors for determining the public interest in this respect include the seriousness of the complaint and the need for the public to perceive that the investigation of the complaint is undertaken by a third party, i.e. the Commission. The Act requires the Chairman, after completing a public interest investigation, to prepare and send to the Minister and the Commissioner of the RCMP an interim report in writing containing findings and recommendations in relation to the complaint. The Commissioner of the RCMP is then required to review the complaint in light of the findings and recommendations set out in the report and notify the Minister and Chairman in writing of any action that either has been or will be taken regarding the complaint. After considering the Commissioner's written response to the interim report, the Chairman is required to prepare and send a final report to the Minister, the Commissioner and the parties.

111. In November 1992, the Commission Chairman decided that it was advisable in the public interest for the Commission to investigate the complaint presented by the President of CASAW. Thirty-one consecutive days of investigation were carried out into 43 out of the 45 incidents. A public hearing was instituted to inquire into the remaining two incidents.

112. From its highly detailed and documented analysis, the Commission found only two of the 43 incidents to have been substantiated. The Chairman also made general recommendations with respect to two incidents where the allegations were not substantiated. Finally, a general recommendation was made as to the possibility of an emergency plan for the RCMP to form the nucleus of a labour dispute plan. Upon receipt of the report, the Commissioner indicated his agreement with the findings and the action he proposed to take such as ensuring that certain officers were provided with appropriate training concerning investigating techniques and reporting procedures. The Chairman, in the final report, indicated his satisfaction with the action proposed.

113. Following the public hearing into the final two allegations, the Commission found the actions of the officers in question to be justified and no specific recommendations were made. Some general recommendations were made, however, concerning public education and information.

C. The Committee's conclusions

114. The Committee takes note of the Government's reply and in particular of the voluminous reports of the Royal Canadian Mounted Police (RCMP) Public Complaints Commission.

115. Given the meticulous and detailed investigation which was carried out into the complainant's allegations by a body recognized to be independent and impartial and given that the action proposed to be taken by the Commissioner of the RCMP concerning four of the incidents complained of satisfies the Complaints Commission, the Committee considers that this case does not call for further examination.

The Committee's recommendation

116. 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. 1829

Definitive report

Complaint against the Government of Chile

presented by

the Trade Unions International of Workers of the Building,
Wood and Building Materials Industries (UITBB)

Allegations: Threats against a trade union leader,
anti-trade union dismissals and acts of interference
and restrictions on collective bargaining

117. The complaint in this case is contained in communications from the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB) dated 25 January and 13 April 1995. This organization subsequently sent additional information in a communication dated 16 May 1995. The Government sent its observations in communications dated 2 October, 2 and 20 November 1995 and 3 January and 15 May 1996.

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

A. The complainant's allegations

119. In its communications of 25 January and 13 April 1995, the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB) alleges that two workers employed in the IMS consortium died accidentally on 17 January 1995 as the result of the collapse of a slope in a tunnel in which no protection on safety measures had been taken. The complainant organization states that the National Confederation of Trade Unions of Workers in Building, Wood, Building Materials and Related Activities (CNTC) had denounced the precarious occupational safety and health conditions which existed at this worksite, but that no attention was given to this appeal by the enterprise's management, the respective ministries or the administration of the underground railway.

120. The complainant organization adds that in May 1994 the enterprise management dismissed numerous workers who had participated in a brief work stoppage in support of their claims concerning wages and occupational safety and health, and that after this incident, the enterprise management systematically abolished the trade union organization which the workers had set up.

121. Furthermore, the complainant organization states that "there is no right to collective bargaining" for building workers. Finally, the complainant organization points out that there is a permanent attitude of aggression towards workers' organizations and that "as a corollary to the firm defence and promotion of workers' claims in the IMS enterprise, the latter initiated action contrary to any sense of ethics, and that the Government, which in various ways is encouraging the development of trade unionism controlled by employers, is also responsible for this". The complainant organization alleges that so-called guards are recruited by the enterprise for the purpose of preventing or neutralizing activity by trade union leaders or officials and that the President of the CNTC, Mr. Adrián Fuentes Hermosilla, was threatened and prevented from entering the worksite.

B. The Government's reply

122. In its communication of 2 October 1995, the Government states in connection with the alleged systematic liquidation of the trade union organization that the Labour Directorate has reviewed the records concerning the trade union organizations set up in the building contractor enterprises for line 5 of the metropolitan underground railway of Santiago and was able to establish the existence of the Trade Union of Workers of the building enterprise IMS Ltda., set up on 12 May 1994, which re-elected its officers following the resignation of its previous directors on 2 February 1995.

123. As for the occupational accident that cost the lives of two workers on 17 January 1995 in construction section D of line 5 of the metropolitan underground railway (the collapse of the west slope of the worksite in which Víctor Hugo Oñate and Juan Ramón Moraga Muñoz died), the Government states that as soon as the Labour Services were notified of the accident they immediately sent officials to the worksite to verify what had happened, who promptly took all possible measures to ensure compliance with safety standards. After a visual inspection, work in section D was immediately suspended due to the imminent danger to the health and lives of the workers in light of further possible collapses. The suspension affected the work of the building contractor enterprise IMS Ltda., the mandator of which is Metro SA, which in turn is responsible for the design of the above-mentioned works. Prior to this accident there had been no denunciations of safety problems.

124. The Government adds that the Labour Services immediately requested reports from various technical bodies (Metropolitan Enterprise of Sanitary Works, National Geology and Mining Service, Governor's Office of the Metropolitan Region) as well as technical reports on the investigation of the accident from the mandator enterprise Metro SA, and the Safety Mutual Insurance Society, a body responsible for accident prevention in the works of the enterprise and the social security administrator in respect of occupational accidents and diseases. Cooperation was also requested from the Ministry of Public Works, which appointed two engineers in ground mechanics. On the basis of these reports, and in particular the instructions given by the mandator Metro SA for a reduction in the inclination of the slope and the construction of a step to reduce the height of the slope from 12 to 8 metres, and the report of the engineers of the Ministry of Public Works, which indicated that the proposed measures were sufficient to eliminate the imminent danger to the health or lives of the workers which had given rise to the suspension of work. Resolutions were issued which at first partially lifted the suspension placed on the works, to enable repairs to be carried out and, once the danger had ceased, lifted the general suspension affecting section D. Thus, work was suspended until 9 February 1995. Finally, the Government states that as a result of these unfortunate events, the Labour Directorate concluded an agreement on the inspection of public works with the Ministry of Public Works, which is currently in the implementation stage. In the same way, the work of the Labour Directorate and the Metropolitan Environmental Health Service is being coordinated, and together they will deal with the subjects of occupational safety and health, and in particular serious fatal accidents. The Government states that at present a Bill is before the Senate of the Republic which will broaden the powers of the Labour Directorate in the inspection of occupational safety and health.

125. In its communications dated 2 and 20 November 1995, 3 January and 15 May 1996, the Government refers to the allegations of the dismissal of workers from the IMS building enterprise in May 1994, on which it provides the following information:

In May 1994 the IMS Ltda. building enterprise dismissed 56 workers who were employed on line 5 of the Santiago underground. The grounds given for terminating the contract in 36 cases was that set out in section 161, paragraph 1, of the Labour Code, which reads as follows: "Notwithstanding the provisions contained in the foregoing sections, an employer may terminate a contract of employment on grounds of the requirements of the enterprise, establishment or service, such as those deriving from their streamlining or modernization, drops in productivity, changes in the conditions of the market or of the economy, which render necessary the separation of one or more workers, or the fact that the employee's work or skills are not suited to his or her task."

The other 20 workers whose contracts were terminated were dismissed on the grounds set out in section 160, paragraph 3, of the Labour Code, which states: "The contract of employment shall terminate without the employee being entitled to any compensation when the employer terminates it for one or more of the following reasons: ... desertion by the employee of his post without due cause for two consecutive days, two Mondays in the month or a total of three days during the same period of time; similarly, the unjustified absence, or absence without prior notice, of an employee responsible for an activity, job or machine whose abandonment or stoppage entails a serious disruption in the running of the operation."

The Labour Services have no record of workers being dismissed as a reprisal for their setting up a trade union, nor have they any information about the incident described as a "brief work stoppage" by workers at the IMS enterprise in May 1994. Dismissals can be contested before the labour courts.

126. Turning to the alleged non-existence of the right to collective bargaining for construction workers, the Government states that section 305 of the Labour Code provides as follows: "The following shall not be permitted to bargain collectively: (1) workers who are parties to contracts of apprenticeship and workers engaged exclusively for a specified temporary or seasonal project or job." The Government states that in practice, however, in cases of large-scale work which may be of a temporary nature, collective agreements have been concluded which have led to a substantial improvement in the benefits granted on an individual basis. This situation is the case in the building enterprise IMS Ltda., where a collective agreement was signed with the mediation of the regional authorities of the Labour Services on 31 March 1995 by means of unregulated or voluntary collective bargaining. The Government states that in January 1995 it submitted a Bill to the National Congress establishing a collective bargaining procedure for the trade unions of temporary or seasonal workers.

127. With respect to the supposed threats against the President of the National Confederation of Trade Unions of Workers of Building, Wood Building Materials and Related Activities of Chile, Mr. Adrián Fuentes Hermosilla, the Government states that the Labour Services have received no denunciations or complaints and that the Penal Code provides severe penalties for those who issue threats. Likewise, concerning the alleged encouragement given to the development of trade unionism controlled by employers which disregards the true interests of the workers, the Government emphasizes its support of the principle of trade union autonomy and states that the Labour Services have no information available to confirm such allegations; under the provisions of sections 289 to 294 of the Labour Code, any party may denounce anti-trade union or unfair practice to the labour courts, which are empowered to investigate and to order the redress or modification of acts which constitute unfair practice, and may even apply substantial fines. Finally, the Government states that a Bill has been submitted to the National Congress which will broaden protection against anti-trade union dismissal.

C. The Committee's conclusions

128. The Committee observes that in this case the complainant organization alleges: (1) the dismissal of a number of workers in May 1994 from the IMS building enterprise after they held a brief work stoppage in support of their claims concerning wages and occupational safety and health; (2) the impossibility for construction workers to bargain collectively; (3) the accidental death of two workers during the construction of line 5 of the metropolitan underground railway being carried out by the IMS enterprise; (4) the presence of guards recruited by the enterprise to prevent or neutralize activity by trade union leaders or officials and the threats against the President of the CNTC who was barred from entering the worksite; and (5) the encouragement given by the Government to the development of trade unionism controlled by employers.

129. As regards the allegation relating to the dismissal of a number of workers from the IMS building enterprise in May 1994 after they had held a brief work stoppage in support of their claims concerning wages, occupational safety and health, and the subsequent attempt to systematically abolish the trade union organization of the IMS enterprise, the Committee observes that the Government in its reply refers to 56 dismissals in May 1994 (36 workers were dismissed in May 1994 on the grounds set out in section 161, paragraph 1, of the Labour Code -- requirements of the enterprise, streamlining, changes in the economy, etc. -- and 20 others on the grounds set out in section 160, paragraph 3 -- desertion of the employee's post without due cause). The Committee also notes that the Government has no record of the brief work stoppage referred to by the complainant and underlines the right of those dismissed to take legal action. In this regard, given that the Government has not indicated the concrete reasons for the various dismissals and has simply indicated the legal grounds for dismissal invoked by the enterprise, the Committee considers that there is evidence that these dismissals were more than likely of an anti-trade union nature. In these circumstances, the Committee recalls as a general point that respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities and therefore requests the Government to take measures for the reinstatement of the workers concerned as far as still possible. The Committee notes that the Government has submitted to Congress a Bill which will broaden protection against acts of anti-trade union discrimination and requests the Government to keep it informed of how the submission procedure progresses.

130. Turning to the allegation that under the Labour Code it is impossible for temporary workers to bargain collectively, the Committee notes that the Government states that in spite of the provisions of the Labour Code, in practice collective agreements have been concluded -- independently of the provisions of the Labour Code -- in large-scale worksites and that this was the case in the IMS enterprise, where a collective agreement was concluded in March 1995, with the mediation of the regional authorities of the Labour Services. The Committee similarly notes that the Government has submitted a Bill to the National Congress establishing a concrete collective bargaining procedure for the trade unions of temporary workers. The Committee recalls that these workers should be able to negotiate collectively and requests the Government to keep it informed of how the submission of this Bill progresses.

131. With respect to the accidental death of two workers during the construction of line 5 of the metropolitan underground railway being carried out by the IMS enterprise, the Committee notes the Government's statement that various measures were taken following the accident to eliminate dangers to the health or lives of workers (visual inspection, suspension of work, request for reports from technical bodies, etc.). In this connection, the Committee recalls that it is not for it to rule on issues concerning occupational safety and health.

132. As for the allegations concerning: (1) the presence of guards recruited by the IMS enterprise to prevent or neutralize trade union activity and the threats made against the President of the CNTC, Mr. Adrián Fuentes Hermosilla; and (2) the encouragement given by the Government to the development of trade unionism controlled by employers, the Committee takes due note of the Government's declaration that the Labour Services have no information to confirm these allegations and that, under the provisions of the Labour Code (sections 289 to 294) any party may denounce anti-trade union or unfair practice to the labour courts or submit a complaint to the criminal courts in the event of threats. Given this situation, the Committee can only observe that the allegations made by the complainant organization are very vague and that it has not provided any additional details in spite of having been invited to do so.

The Committee's recommendations

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

The Committee requests the Government to take the measures necessary so that, as far as still possible, the workers dismissed from the IMS building enterprise following a work stoppage in May 1994 be reinstated.
With respect to the allegations concerning collective bargaining in the construction sector and anti-trade union dismissals, the Committee takes note of the Bills submitted by the Government to the National Congress relating to the right of temporary workers to bargain collectively and the broadening of protection against anti-trade union discrimination.
The Committee requests the Government to keep it informed of all progress made in connection with these Bills.

Case No. 1870

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

Complaint against the Government of Congo

presented by

the International Confederation of Free Trade Unions (ICFTU)

Allegations: Arrest and sentencing of trade union officers
and members; restrictions on the right to strike

134. The complaint of the International Confederation of Free Trade Unions (ICFTU) against the Government of Congo is contained in a communication dated 23 February 1996. As the Government did not reply, the Committee had to postpone the examination of this case on two occasions. At its June 1996 meeting [see 304th Report, para. 10], the Committee made an urgent appeal to the Government, stating that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if the observations or information requested had not been received in due time. The Government has not sent any observations to date.

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

A. The complainant's allegations

136. In its communication dated 23 February 1996, the ICFTU states that the Government is violating the trade union rights of one of its affiliates, the Confederation of Free and Autonomous Trade Unions of Congo (COSYLAC), and its members. Specifically, it makes the following allegations:

refusal to involve the trade unions in the privatization process under way in the country; having accepted the principle of privatization of various public sector enterprises, the workers had set up a trade union coordinating committee for the key enterprises facing privatization so that the social partners could discuss the impact of the decisions to be taken; despite the Government's promises, no negotiations were taken up with the committee; the Government refused to allow any trade union participation and dialogue to deal with the issues raised by privatization;
restrictions on the exercise of the right to strike: according to the complainant organization, the COSYLAC had instructed its members on 20 January 1996 to go on strike in protest against the Government's refusal to involve the trade unions in the ongoing privatization process; the Government immediately declared the strike illegal, accusing the trade union officers of violating the "right to work" and of allegedly committing acts of sabotage, cutting off the water and electricity supply and disrupting telephone connections on 19 and 20 January. President Lissouba allegedly viewed the strike as an attempted coup d'état;
dismissals on account of participation in a strike: 122 workers who were not at their work posts during the strike on 22 January were summarily dismissed, in disregard of labour legislation;
the arrest, detention, ill-treatment and imprisonment of trade union officers and members; according to the complainant organization, on 22 January 1996 the authorities ordered the arrest of four members of organizations affiliated to the COSYLAC, Mr. Lessita Otangui, Secretary-General of the FESYPOSTEL, Mr. Oba René Blanchard, President of the SYLIPOSTEL, Mr. Odzongo Médard, of the FESYPOSTEL, and Mr. Bouya Bernard of the SYNATEL. These persons were assaulted at security forces headquarters (DGST) before being incarcerated; shortly afterwards, two other trade union members, Mr. Tchikaya and Mr. Mampuya, were also arrested;
sentencing of the COSYLAC officers: the complainant organization states that the four main trade union officers mentioned above were sentenced on 14 February 1996 to four months' imprisonment and a fine of 50,000 CFA francs; according to defence counsels, no proof of guilt was provided in court. According to the complainant organization, this incident is widely believed to be a government attempt to destroy COSYLAC in order to make it easier to apply the World Bank structural adjustment programme without opposition and without having to embark on dialogue with the workers who will be affected by privatization.

137. According to the complainant organization, systematic denial of the legitimate request for dialogue with a trade union bargaining committee and brutal repression of protest action against this refusal constitute violations of the most fundamental principles of freedom of association.

B. The Committee's conclusions

138. The Committee regrets that, despite the time which has elapsed since the presentation of this complaint, the Government has not replied to any of the allegations of the complainant organization, although it has been invited several times, including by means of an urgent appeal, to present its comments and observations on this case.

139. In these circumstances, in accordance with the applicable procedural rule [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee will have to present a report on the substance of the case without being able to take account of the information it hoped to receive from the Government.

140. The Committee would remind the Government that the purpose of the whole procedure instituted by the International Labour Organization to examine allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee notes that in another case of allegations against the Government of Congo (No. 1850), which it examined at its previous meeting, the Government had not replied either. The Committee remains confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed factual replies to the allegations put forward [see First Report of the Committee, para. 31].

141. The Committee notes that the allegations in this case refer to the denial of trade unions' right to be consulted, restrictions on the right to strike, arrests, imprisonment and sentencing of trade union officers and members, and summary dismissal of trade union members for participating in a strike.

142. As regards the allegation to the effect that the Government refuses to engage in dialogue with the trade unions to deal with issues relating to privatization, the Committee notes that, despite the Government's promises, there have been no negotiations with the coordinating committee set up by the workers. The COSYLAC then called a strike of its members in protest against the Government's attitude. In the Committee's view, restructuring in the public sector, and especially the privatization of enterprises in the context of the application of a structural adjustment policy, undeniably has a considerable impact on social and trade union matters. It is therefore necessary for the social partners, in particular trade union organizations, to be consulted, at least on the social impact and modalities of the measures decided upon by the authorities. In view of the impact that privatization measures in certain public sector enterprises and, in general, government structural adjustment and privatization policy can have on working conditions, the Committee would emphasize the importance that it attaches to the effective promotion of consultation and cooperation between public authorities and workers' organizations in this area, in accordance with the principles laid down in Recommendation No. 113, with the aim of joint consideration of matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions.

143. As regards the restrictions on the right to strike, the Committee notes that, according to the complainant organization, the strike held in protest against the refusal to embark on dialogue and negotiations on privatization issues, called by the COSYLAC on 20 January 1996, was immediately declared illegal by the Government and viewed as an attempted coup d'état, and that it gave rise to intervention by the authorities, arrests and dismissals. In this respect, the Committee recalls that organizations responsible for defending workers socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 480]. The Committee also draws the Government's attention to the fact that final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute. [See Digest, op. cit., para. 523.]

144. With regard to the dismissals, the Committee notes that 122 workers who were not at their work posts during the strike held on 22 January 1996 have been summarily dismissed. In this respect, the Committee recalls that respect for the principles of freedom of association requires that workers should not be dismissed on account of their having participated in a strike or other industrial action. The Committee requests the Government to make all efforts to ensure that these workers are immediately reinstated in their jobs and to keep it informed of the situation of these workers.

145. As regards the arrest and imprisonment of trade union members, the Committee notes that, according to the complainant organization, on 22 January 1996 the authorities ordered the arrest of four members of post and telecommunications unions affiliated to the COSYLAC, Mr. Lessita Otangui, Secretary-General of the FESYPOSTEL, Mr. Oba René Blanchard, President of the SYLIPOSTEL, Mr. Odzongo Médard, of the FESYPOSTEL, and Mr. Bouya Bernard, of the SYNATEL. The Committee notes that according to the allegations, Mr. Oba was detained at his trade union headquarters. It notes that these persons were assaulted at security forces headquarters before being incarcerated. It notes further that according to the complainant organization, these four trade union officers were sentenced on 14 February 1996 to four months' imprisonment and a fine of 50,000 CFA francs and that according to defence counsels, no proof of guilt had been provided in court. The Committee regrets that the Government has not transmitted any comments and observations in this respect. It must recall that the arrest and detention of trade unionists on the grounds of trade union activities constitutes a serious obstacle to the exercise of trade union rights and an infringement of freedom of association. [See Digest, op. cit., para. 75.] The Committee further recalls that in cases involving the arrest, detention or sentencing of a trade union official, the person concerned should be presumed innocent. Although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with generally recognized principles, should be considered as legitimate trade union activities. [See Digest, op. cit., paras. 65 and 42.] In view of the fact that the sentences appear to be have been motivated by the organization of a strike in protest against the lack of consultation of trade union organizations in the privatization process, the Committee has reason to believe that the persons concerned were sentenced for legitimate trade union activities. It therefore deeply deplores these sentences imposed in violation of the principles of freedom of association and calls for the immediate and unconditional release of these unionists and their reinstatement in their jobs. It requests the Government to keep it informed of the measures taken in this regard.

146. The Committee notes further that two other trade union members, Mr. Tchikaya and Mr. Mampuya, were also arrested. The Committee regrets that it has received no observations from the Government in this respect. It requests the Government to take the necessary steps without delay to conduct an independent and objective inquiry in order to ascertain the facts and exact circumstances of the arrests. The Committee requests the Government to release these unionists immediately and unconditionally and ensure their reinstatement in their posts. It requests the Government to keep it informed of the measures taken in this respect.

The Committee's recommendations

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

As regards the refusal to engage in negotiations, consultations and dialogue with the COSYLAC on the privatization of public sector enterprises, the Committee, recalling that workers' organizations should be able to use strike action to support their position in the search for solutions to problems posed by major economic and social policy trends, emphasizes the importance it attaches to the effective promotion of consultation and cooperation between public authorities and workers' organizations, in accordance with the principles laid down in Recommendation No. 113, with the aim of joint consideration of matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions. The Committee requests the Government to keep it informed of developments in this respect.
As regards the summary dismissal of 122 workers for participating in a strike, the Committee, recalling that respect for the principles of freedom of association requires that workers should not be dismissed on account of their having participated in a strike or other industrial action, requests the Government to keep it informed of the results of this inquiry and of the situation of these workers, and to make all efforts to ensure that they are reinstated in their jobs.
As regards the arrests of trade union members mentioned by name by the complainant organization, the Committee, recalling that no-one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike, urges the Government to take steps to open an independent and objective inquiry to ascertain the circumstances of the arrests. As concerns the arrests of Mr. Tchikaya and Mr. Mampuya, the Committee calls for their immediate and unconditional release and their reinstatement in their jobs. It requests the Government to keep it informed of the measures taken in this respect.
As regards the four main trade union officers who were sentenced, in view of the fact that the sentences appear to have been motivated by the organization of a strike in protest against the lack of consultation of trade union organizations in the privatization process, the Committee has reason to believe that the persons concerned were sentenced for legitimate trade union activities. It therefore deeply deplores these sentences imposed in violation of the principles of freedom of association and calls for the immediate and unconditional release of these unionists and their reinstatement in their jobs. It requests the Government to keep it informed of the measures taken in this regard.

Case No. 1868

Definitive report

Complaint against the Government of Costa Rica

presented by

-- the National Service of Underground Waters, Irrigation
and Drainage Professional Employees' Association (ASES) and
-- the Costa Rican Workers' Movement (MTC)

Allegations: Anti-union dismissals

148. The complaint in this case is contained in a joint communication from the National Service of Underground Waters, Irrigation and Drainage Professional Employees' Association (ASES) and the Costa Rican Workers' Movement (MTC), dated 8 January 1996. The ASES subsequently sent additional information in a communication dated 24 January 1996. The Government sent its observations in a communication dated 25 July and 17 October 1996.

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

A. The complainants' allegations

150. In their communications of 8 and 24 January 1996, the SENARA Professional Employees' Association (ASES) and the Costa Rican Workers' Movement (MTC) allege that the SENARA dismissed 17 workers, including Miguel Céspedes Araya, the Association's general secretary, Greivin Madrigal Chavarría, recording and correspondence secretary, and recently Ana Nájera Herrera, ex-secretary-general and active militant.

151. The complainants add that the Ministry of Labour and the parties concerned agreed to the setting up of a tripartite committee to examine whether the dismissal of the first 17 persons was legally justified and the possible reinstatement of the workers entitled to be reinstated. The complainants add that although in October 1995 this committee considered unjustified the dismissal of the trade union officials, Mr. Céspedes and Mr. Madrigal, the Government did not act upon this decision.

B. The Government's reply

152. In its communication of 25 June 1996, the Government states that in accordance with national legislation and ILO Conventions Nos. 87, 98 and 135, ratified by Costa Rica, any actions or oversights tending to avoid, limit, restrict or prevent in any way the free exercise of the collective rights of workers, their trade unions or workers' associations, are prohibited. The National Board of the Labour Inspectorate is the technical body officially delegated by the Ministry of Labour and Social Security to inquire into, by any means it considers necessary, infringements of legislation in connection with unfair labour practices of which it is aware. It is important to note that the ASES did not submit any complaint whatsoever to the above-mentioned board on the grounds of trade union persecution or unfair labour practices. The Government regrets that this organization appealed to the ILO without first having exhausted all the mechanisms of inquiry and settlement guaranteed by the national legal system in the event of cases such as that submitted by the complainants. This bears witness to a flagrant temerity on the part of the complainant organizations as well as an ignorance of the state of law prevailing in Costa Rica.

153. Concerning the alleged dismissals carried out by the SENARA, including two trade union officials, the Government of Costa Rica points out that the Ministry of Labour, through the General Board of Labour Affairs, convened on numerous occasions SENARA representatives and workers from this organization with a view to examining the dismissals of several workers at this workplace. After a number of ministerial initiatives and meetings, a meeting was held on 21 August 1995 in the office of the Minister of Agriculture and Livestock attended by representatives of this ministry, SENARA, ASES-MTC and the Ministry of Labour and Social Security; on this occasion, they agreed to set up a committee to look into the termination of contracts of a group of workers. On 13 October 1995, the Department of Labour Relations issued its opinion on the complaint submitted by ASES alleging infringements of labour legislation and arbitrary dismissals by the employers. It is relevant to note in this paragraph that in accordance with the legal system in force, the Department of Labour Relations' role in cases of this nature is to try to prevent the development of disputes between employers and workers or to reach an out-of-court agreement, if these have already occurred, at the request of any of the parties concerned; and it was within this mandate that the Department intervened. It thus summoned the parties to hear their case and propose possible means of settlement, in accordance with the labour legislation. However, the proposals put forward by departments of this type are not of a binding nature, unlike those specifically stipulated by law -- such as those issued by the Attorney-General of the Republic.

154. For this reason, it is important to reproduce in full the reply to the hearing granted by the Ministry of Labour to the SENARA, pursuant to the complaint in question and in order not to undermine the right of hearing and legitimate defence:

1. SENARA is an organization which respects of the free exercise of trade union rights and it has never, throughout its history, been subjected to any proceedings which questioned matters of this nature; neither has it ever been penalized for such facts.

2. To meet a number of temporary needs occasioned by the implementation of the second stage of the Arenal-Tempisque irrigation project, SENARA was obliged to recruit officials in various branches of activity in addition to its permanent staff. Once the needs of this project were over, the contracts of the temporary staff in question came to an end.

3. The former officials, Miguel Céspedes Araya, Greivin Madrigal Chavarría and Parménides Furcal Beriguete, were never members of the SENARA permanent staff. They belonged to a group of employees recruited on a temporary basis as part of the special services. Their employment relationship terminated when their temporary contracts came to an end, as indicated in the documents issued by the Department of Human Resources of this institution which are enclosed herewith.

4. The fact that amongst the group of temporary workers there were employees belonging to a trade union was in no way linked to the termination of their contracts and the claim made by the trade union sector that the tacit grounds for their dismissal was their involvement in trade union activities, hoping in this way to obtain benefit not due to them, is devoid of any substance. At the time the labour contracts were terminated, there was no dispute of a trade union nature that SENARA might settle or try to settle by unlawfully dismissing trade union officials; in these circumstances, this would have been as absurd as providing medicine to someone who was not sick.

5. The burden of proof in this case lies with those who claim that the tacit grounds for terminating the labour contracts in question was the exercise of trade union rights and activities of the former officials.

6. In August 1995 a committee was set up by this ministry to analyse the termination of the labour contracts of the complainants. The following resulted from the work of this committee:

(a) the committee was set up with a view to analyse the actual occurrences and to determine if there had been infringements of trade union rights;

(b) within the committee, the trade union sector requested that the work should confine itself specifically to the reinstatement of six former officials. The employer was in agreement to discuss this subject pointing out specifically that:

-- in the case of officials with temporary posts, their reinstatement would involve the creation of permanent posts which was not within the competence of the commission but that of the Budgetary Authority;

-- in addition to the above-mentioned consideration, there would have to be a technical examination of each case to determine, in the light of the institution's needs, whether the creation of these posts was justified;

-- any decision taken would require the necessary funding and comply with the standards in force regulating this area;

all the above was put down in writing before the final decision and contained in the respective file;

(c) at the request of the trade union sector the committee did not discuss or examine evidence on the legal or financial aspects. The examination was restricted to the technical aspect of the case;

(d) as might reasonably have been expected, the positions of SENARA and the trade union sector were opposed and the Ministry of Labour's opinion was awaited to settle the dispute;

(e) we were surprised by the fact that the opinion finally put forward by the Ministry of Labour referred to freedom of association; although this had been vaguely referred to by the trade unionists, this aspect was not examined within the committee and no proof was furnished in relation to this subject. Our attention was also drawn to the fact that the ministry did not merely put forward an opinion but unilaterally decided on measures to implement a decision taken which was outside the competence and scope of the committee, such as the reinstatement of two officials, thus making this decision null and void;

(f) SENARA subsequently requested the opinion of the budgetary authority which considered, in the same way as SENARA, that the termination of the labour contracts was in no way related to the freedom of association of the ex-officials in question and that their reinstatement would not be in line with our legislation in force.

155. The Government adds that the role of the Labour Relations Department is that of an "arbitrator", unless the parties to the dispute agree that the final decision should be of a binding nature, which was not the case in this particular instance. On the contrary, the complainant organizations did not, in this particular case, as stated at the beginning, exhaust all the proceedings of the National Board of the Labour Inspectorate. This body is legally entitled, once the existence of unfair labour practices has been ascertained, to initiate legal proceedings with a view to safeguarding rights protected by law and to request penalties provided for under the labour legislation in force, irrespective of any other legal measures that might be taken.

156. As regards the ruling handed down by the Budgetary Authority, dated 3 January 1996, this upheld SENARA's arguments that the workers Miguel Céspedes Araya and Greivin Madrigal Chavarría were not permanent members of staff but employed on a temporary basis and that they were perfectly aware of the fact that they were recruited on a fixed-term contract. It confirmed that the termination of the employment relationship of the above-mentioned former officials was consistent with the period of time for which they were appointed and did not constitute an infringement of freedom of association on the part of SENARA.

157. For the above reasons, the Government is of the opinion that the complainants, in this particular case, are clearly unaware of the national mechanisms for settling disputes, both administrative and legal, provided for in the present legal system. It is therefore totally unfounded to condemn the Government for an alleged cause of action which, up to now, has not been a subject of complaint brought before the competent administrative and legal authorities. Furthermore, it has been clearly demonstrated that the Ministry of Labour and Social Security's action was in full conformity with the law and that it took the necessary steps to attempt to safeguard workers' rights. The Government believes that the complaint should be rejected.

158. In its communication of 17 October 1996, the Government stated that Mrs. Ana Nájera Herrera, ex-secretary-general of the ASES did not complain to the officials of the Ministry of Labour and Social Security, and regrets that ASES did not exhaust internal procedures before presenting this complaint. The Government attached a copy of the reply of the management of SENARA concerning her dismissal, which indicates that the employment relationship of Mrs. Ana Nájera Herrera was based on a contract for a specific task and that hiring her corresponded to the needs of this task. The employment relationship with Mrs. Ana Nájera Herrera was terminated upon the completion of the task, without any anti-union motive. Mrs. Ana Nájera Herrera received the indemnity provided for by the law and has made no administrative complaint.

C. The Committee's conclusions

159. The Committee notes that in this complaint the complainant organizations have alleged: (1) the termination of the labour relationship of 17 workers from SENARA, including the trade union officials Céspedes Araya and Madrigal Chavarría; and (2) the subsequent dismissal of the trade union militant and former secretary-general of the ASES, Mrs. Ana Nájera Herrera

160. The Committee notes that according to the documentation sent by the Government, the matter of the 17 dismissed workers was submitted to a tripartite committee which decided to concentrate on the cases of six persons. The Committee subsequently upheld the dismissals of four of these (votes of the Ministry of Labour and SENARA -- Ministry of Agriculture) and decided to leave without effect the dismissals of Céspedes Araya and Madrigal Chavarría. The representative of the Ministry of Labour also considered that there were violations of freedom of association in these two cases.

161. The Committee notes, however, that the ruling of the tripartite committee is not in line with that of the budgetary authorities who stated that Céspedes Araya and Madrigal Chavarría were temporary workers and that the termination of their employment relationship was in keeping with the period of time for which they were appointed and did not constitute an infringement of freedom of association. The SENARA institution justifies the termination of the temporary contracts of the two officials on the grounds that they had come to an end and that the project undertaken was gradually completed. SENARA denies having been prompted by anti-union feelings and points out that at the time of the events there was no dispute of a trade union nature. Finally, the Government seems to deny that the conclusions of the tripartite committee were of a binding nature and points out that those concerned did not make use of the administrative and judicial proceedings provided for under the legislation.

162. Taking into account all the available facts and in particular the findings of the work of the tripartite committee and the considerable delay which would be incurred if proceedings were brought before the administrative and legal appeal authorities, the Committee requests the Government to take steps to encourage the reinstatement in their jobs of trade union officials, Céspedes Araya and Madrigal Chavarría.

163. Finally, as concerns the allegation concerning the dismissal of the trade union activist and ex-secretary-general of ASES, Mrs. Ana Nájera Herrera, the Committee notes that the employment relationship was based on a contract for a specific task and that this relationship was terminated upon the completion of this task. The Committee notes that the Government denies the existence of any anti-union motive and that it states that the person concerned did not complain to the competent authorities, but rather that she accepted the indemnity provided by the law.

The Committee's recommendation

164. 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 steps to encourage the reinstatement of the trade union officials of ASES, Céspedes Araya and Madrigal Chavarría.

Case No. 1875

Interim report

Complaint against the Government of Costa Rica

presented by

the Latin American Central of Workers (CLAT)

Allegations: Anti-union discrimination in the
context of a restructuring process

165. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) dated 19 March 1996. The CLAT sent additional information in a communication dated 24 May 1996. The Government replied in a communication dated 22 July 1996.

166. Costa Rica 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

167. In its communications dated 19 March and 24 May 1996, the CLAT alleges that in the context of the restructuring of the public administration, tens of workers and a large number of trade union officers, in particular those of the Agrarian Development Institute Employees' Union (UNEIDA), have been dismissed or subjected to measures impairing the exercise of freedom of association; specifically, the complainant referred to the following trade union members (nine officers of the Executive Committee of UNEIDA, other representatives and members):

Walter Quesada Fernandez, general secretary of UNEIDA, dismissed on 26 January 1996;
Iriabel Zumbado, assistant general secretary of UNEIDA, was virtually forced to take leave in December 1995 and was subsequently informed that she had been transferred to the Chorotega region;
Elieth María Rodríguez, representative of the women's secretariat of UNEIDA, was told to resign and was dismissed on 2 January 1996;
Walter Arturo Porras Campos, treasurer and disputes secretary of UNEIDA, was investigated by the auditor of the Agrarian Development Institute (IDA) for allegedly altering invoices; he was later forced to go on leave and received notification of his dismissal on 3 January 1996;
Jeannette Mac Quiddy Artavia, secretary of the minutes of UNEIDA, received her notification of dismissal on 3 January 1996. She operated the IDA radio and enabled trade union messages to be transmitted;
José Fausto Osorno, secretary for regional affairs for UNEIDA, was notified of his dismissal on 3 January 1996 while he was on leave;
Oscar Campos Hidalgo, representative of the Committee for Labour Affairs, Classification and Job Regrading of UNEIDA, was dismissed on 16 February 1996;
Mario Moya Benavides, a substitute officer, was unilaterally transferred to the rural development programme;
Alexis Cyrman Sánchez, general secretary for regional affairs; Luis Fernando Araya Benavides, press secretary; José Francisco Molina Rojas, finance secretary; Dennis Castellón Toval, substitute officer; Patricia Viales Ortega, UNEIDA representative in the Chorotega region; Ivonne Segura Esquivel, UNEIDA representative in the central Turrialba region, and Marco Antonio Aguilar Vargas, UNEIDA representative in the Chorotega region, were also dismissed as of 3 January 1996.

168. The complainant adds that these measures were aimed at undermining the trade union, obstructing its work and consequently preventing the trade union from being involved in the restructuring process of the IDA. It should also be pointed out that the Board of Directors of the IDA did not take account of trade union immunity, the performance of these workers in their respective jobs or their seniority, and no final decision has been taken yet on the complaints presented.

B. The Government's reply

169. In its communication of 22 July 1996, the Government states that, by agreement reached by the Board of Directors of the Agrarian Development Institute (IDA), a project for the structural and operational modernization of the IDA was approved on 10 October 1995.

170. The modernization of the IDA was dictated by the historical need for an instrument ensuring efficient and effective management for the benefit of the Costa Rican farmer. It is essential to point out that consultations were held concerning the approval of this project with associations of farmers involved in Costa Rican agriculture and trade unions, when the observations of the labour committees set up under the agreement signed on 17 April 1995 were incorporated. As regards the termination of the employment relationship of the staff, included in the modernization project, this was based on technical grounds which had been duly approved by the Ministry of National Planning and Economic Policy.

171. As regards the termination of employment of certain trade union officers included in the above-mentioned project, it is essential to point out that this did not take account of their trade union office; account was only taken of their status as officials of the IDA and the above-mentioned technical grounds; the IDA respected their right to be defended.

172. It should be pointed out that in a letter dated 5 January 1996, Mr. Walter Quesada Fernández, general secretary of the IDA Employees' Union -- UNEIDA, Elieth María Rodríguez, Jeannette Mac Quiddy Artavia, Walter Arturo Porras Campos, José Francisco Molina Rojas and José Fausto Osorno lodged an appeal for the protection of their constitutional rights (recurso de amparo) with the Constitutional Chamber of the Supreme Court of Justice, objecting to the termination of their employment. In their appeal they alleged that there had been a violation of the legal provisions concerning freedom of association and trade union immunity and of ILO Conventions Nos. 87 and 135.

173. The appellants alleged that in their capacity as trade union officers protected by legislation, they could not be included in the plan to modernize the institution, and that the action taken by the administration constituted anti-union persecution and denial of the right to a defence and due process. The Constitutional Chamber (the highest jurisdictional body), in Decision No. 161-96 of 10 January 1996, rejected on its merits the appeal that had been lodged by the above-mentioned officials and ruled that the action taken by the administration was in conformity with the law. Clearly, in including trade union officers in the modernization process, the administration acted in conformity with the Political Constitution and international conventions, and the administrative measure does not constitute anti-union persecution.

174. Similarly, in Decisions Nos. 162-96 and 175-96 handed down on 10 January 1996, the Constitutional Chamber rejected on their merits appeals that had been lodged by officials included in the modernization plan.

175. Notwithstanding the decisions handed down by the Constitutional Chamber, the Ministry of Labour and Social Security showed its willingness to enter into dialogue by acting as mediator and holding three meetings with representatives of the Federation of Public Service Workers. These meetings were attended by representatives of the different trade unions of the Institute, who drafted a list of demands to be presented to the Board of Directors of the Institute. In a definitive agreement dated 23 January 1996, the Board of Directors stipulated that in accordance with the legislation in force, the demand made by the trade unions concerning the annulment of dismissals, compensatory alternatives and other incentives provided for in voluntary labour mobility procedures were not appropriate under the applicable legislation.

176. The modernization process had been approved in accordance with the Constitution and the law, and to accept the demand would make it impossible to achieve the structural and operational modernization of the Institute, to the detriment of the service provided to the Costa Rican farmer, and would clearly impair the public service provided, since the efficiency and effectiveness of the administration would be affected.

177. The Government concludes that there is no doubt that the allegations of anti-union persecution set forth in the complaint are rash accusations, since, as has been demonstrated, the goals of the plan to modernize the IDA never included staff reductions based on trade union membership, only on technical and objective grounds, all of which are supported by the legal framework in force.

C. The Committee's conclusions

178. The Committee observes that in this case the complainant organization has alleged that officers and members of the Agrarian Development Institute Employees' Union (UNEIDA) were dismissed or transferred with the aim of undermining this trade union and preventing it from participating in the restructuring process of the Agrarian Development Institute (IDA).

179. The Committee also observes that the Government emphasizes that (1) the terminations did not take account of the trade union membership of the persons concerned, but were part of a process of restructuring and structural and operational modernization of the IDA and were based on technical grounds which had been duly approved by the Ministry of National Planning and Economic Policy; (2) mediation by the Ministry of Labour and Social Security did not result in the IDA authorities' annulling the dismissals; (3) the highest jurisdictional body, the Constitutional Chamber, rejected on their merits the appeals lodged by the officials concerned, who had alleged anti-union persecution, and ruled that the action taken by the administration had been in conformity with the law.

180. On previous occasions, the Committee has considered that it "can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 935]. In this respect, although the Committee observes that the Constitutional Chamber rejected the allegations of anti-union persecution put forward by the officers and members of the trade union, it cannot but note that, according to the allegations of the complainant organization -- which were not denied by the Government -- the restructuring process resulted in the dismissal of nine officers on the executive committee of UNEIDA and several other representatives. The Committee notes that the complainant and the Government do not agree as to the anti-union nature of the dismissals. The Committee also emphasizes 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 [Digest, op. cit., para. 961].

181. In these circumstances, prior to reaching definitive conclusions, the Committee requests the Government and the complainant organization to indicate the total number of workers at the Agrarian Development Institute before and after the restructuring process, the number of trade union officers and representatives dismissed and the number of trade union officers and representatives prior to the restructuring process. In any event, the Committee requests the Government to respect the principles mentioned above and to investigate whether the dismissal of the UNEIDA officers and representatives in the context of the restructuring process was due to their trade union activities, in which case, they should be reinstated in their posts. Furthermore, the Committee requests the Government to review the transfers of Mr. Mario Moya Benavides and Ms. Iriabel Zumbado. The Committee requests the Government to provide information on the measures taken in this respect.

The Committee's recommendations

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

The Committee requests the Government and the complainant organization to indicate the total number of workers at the Agrarian Development Institute before and after the restructuring process, the number of trade union officers and representatives dismissed and the number of trade union officers and representatives prior to the restructuring process.
In any event, the Committee requests the Government to respect the principles mentioned in the conclusions and to investigate whether the dismissal of the UNEIDA officers and representatives in the context of the restructuring process was due to their trade union activities, in which case, they should be reinstated in their posts.
The Committee requests the Government to review the transfers of Mr. Mario Moya Benavides and Ms. Iriabel Zumbado.
The Committee requests the Government to provide information on the measures taken in this respect.

Case No. 1879

Definitive report

Complaint against the Government of Costa Rica

presented by

the International Confederation of Free Trade Unions (ICFTU)

Allegations: Anti-trade union dismissals, violations of a collective
agreement and procedural delays

183. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 18 April 1996. The Government sent its observations in communications dated 1 August and 11 September 1996.

184. Costa Rica 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 Workers Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

185. In its communication of 18 April 1996, the International Confederation of Free Trade Unions (ICFTU) expressed deep concern that trade unions in the private sector are in a sensitive and difficult situation, as their members have been the target of a policy of reprisals on the part of employers, aimed at destroying the trade union movement in the private sector.

186. The ICFTU states that on 26 November 1995, the members of the Association of Workers of the Fertilizer Sector (ATFE) started a strike at Fertilizantes de Centroamérica SA (FERTICA), a company located in Puntarenas which manufactures fertilizers and has recently been privatized. The strike was prompted by FERTICA's anti-union attitude: it had violated the collective agreement and refused to recognize the ATFE, replacing it with a local solidarist association which was under its control, and dismissed the members and officers of the ATFE. The ICFTU also alleges unfair working practices by FERTICA, including the hiring of new workers at a lower wage and on less favourable health and safety conditions, and the imposition of an excessively heavy workload. These violations of the law and workers rights were duly noted by Ministry of Labour inspectors who were called in specially to investigate the case. But despite the inspectors' report, nothing will be achieved in the short term since legal proceedings are notoriously slow in the Costa Rican legal system, which means that the workers and the organizations which represent them are entirely without protection (the ICFTU attaches the inspectors' report).

187. The ICFTU also alleges that a riot squad was sent to break up a peaceful demonstration that the workers had been staging outside FERTICA premises since 11 September 1995.

188. In conclusion, the ICFTU states that FERTICA's refusal to negotiate with the union and its use of legal subterfuge to prevent the dispute from being settled, together with the complicitous and tolerant attitude of the government authorities, are a foretaste of what awaits trade union organizations in public enterprises destined for privatization.

B. The Government's reply

189. In its communications of 1 August and 11 September 1996, the Government states that, in 1995, FERTICA underwent a process of change and reorganization as a result of privatization. The restructuring of its manufacturing sector caused a labour dispute and the Ministry of Labour and Social Security was called in in an attempt to restore calm and initiate dialogue. Notwithstanding the national legislation, in keeping with the ILO Conventions on freedom of association ratified by Costa Rica (i.e. Conventions Nos. 87, 98 and 135), bans any acts or omissions which tend to avoid, restrict, constrain or prevent the free exercise of the collective rights of workers, their unions or associations of workers.

190. With regard to the alleged anti-union dismissal by FERTICA of several workers' representatives, and its anti-union acts and violation of the collective agreement, the Government states that the Ministry of Labour and Social Security has been keeping matters under close examination in order to remedy these breaches of the law, and has started the necessary legal proceedings in order to maintain the rule of law and ensure that the rules of due process are applied throughout, including in any interlocutory actions or appeals brought by the parties -- which are often used as legal tools for delaying a final decision.

191. In August, September and October of 1995, ATFE officials submitted complaints to the National Labour Inspection Directorate, accusing FERTICA of violating ILO Conventions Nos. 98 and 135 and the collective agreement (virtually in its entirety), and of unfair practices and trade union persecution.

192. In order to expedite processing of the ATFE's three complaints, the National Labour Inspection Directorate ordered two inspectors to investigate the matters jointly. On 20 November 1995 the inspectors submitted their report (a copy is enclosed) in which they concluded that it appeared to them that FERTICA had "arbitrarily nullified the collective agreement in its entirety, thereby violating section 54 et seq. of the Labour Code and Article 62 of the Political Constitution. Similarly, there was sufficient evidence to ascertain anti-union acts and trade union persecution and unfair practices against the Association of Workers in the Fertilizer Sector, known as the ATFE, in breach of section 363 et seq. of the Labour Code, Article 60 of the Political Constitution, and ILO Conventions Nos. 98 and 135. We therefore request that a summons be issued in accordance with the law". With regard to the allegation of trade union persecution and unfair practices, their report indicates that the inspectors in charge of the investigation found that, on 9 September 1995, FERTICA dismissed all its workers, 265 of whom were members of the ATFE, thus totally destroying stability of employment of organized labour. The report also indicates that on 9 September 1995 FERTICA dismissed the ATFE executive, in breach of the procedure established in article 10 of the collective agreement, national standards on the protection of trade union representatives laid down in section 363 et seq. of the Labour Code and ILO Conventions Nos. 98 and 135. According to the report, as from 9 September 1995 FERTICA stopped applying the collective agreement in its entirety, in breach of the legislation governing labour relations. From the same date, all works committees established by the collective agreement were made inoperative and all workers' rights and guarantees, including trade union immunity were abolished.

193. The Government adds that on 5 December 1995 the parties were summoned to a hearing in accordance with section 365 of the Labour Code. The hearing was set for 18 December 1995, but did not take place until 21 December 1995, having been postponed at the request of the employer's representative. At the hearing, the latter halted the proceedings by challenging the locus standi of the trade union leader Mr. Indalecio Ordoñez Calvo (author of one of the complaints) as representative of the members of the organization that had submitted the complaint. By a decision of 8 January 1996, the office of the Minister revoked the decision of the National Labour Inspection Directorate and allowed the employer's claim.

194. In accordance with the Minister's decision, the National Labour Inspection Directorate summoned the parties to a hearing, which was set for 19 January 1996. The hearing was held on that date, but was attended only by the workers' counsel, since FERTICA's head office had refused receipt of the summons. The outcome of the hearing is perfectly plain from the decision issued by the National Labour Inspection Directorate on 29 January 1996, which confirms the conclusions of the investigating inspectors in their report of 20 November 1995.

195. One of the facts established in that decision is that FERTICA has not applied the collective agreement it concluded with the ATFE since 9 September 1995, although it is valid until 15 September 1996. On 9 September 1995, FERTICA dismissed all workers having paid them their entitlements, including 265 members of the ATFE. The decision also states that the trade union leaders Indalecio Ordoñez Calvo and Marco Antonio Guzmán Rodríguez have not received their pay since 10 September 1995, in breach of article 9 of the collective agreement; and with regard to the dismissal of members of the ATFE executive, FERTICA has violated article 10 of the collective agreement. The National Labour Inspection Directorate therefore allowed the ATFE's complaints of violation of the collective agreement, unfair labour practices and trade union persecution by FERTICA. Furthermore, the parties were informed that, once the decision of 29 January 1996 is confirmed, the requisite complaint will be filed with the proper jurisdictional authority.

196. With regard to this last administrative decision, it should be noted that the complainant organization, in objecting to procedural delays, makes a number of subjective and hasty observations which are misleading for the ILO. In this connection, the Government points out that on 21 February 1996, FERTICA applied to have the decision of 29 January 1996 revoked or, failing that, reviewed. By a decision of 8 March 1996, the National Labour Inspection Directorate dismissed the application for revocation and the other applications filed by FERTICA's representative.

197. It is important to point out at this juncture that, in a telegram of 22 March 1996, the Constitutional Chamber of the Supreme Court of Justice asked the office of the Minister to forward as soon as possible the original file pertaining to the administrative proceedings, which contained FERTICA's application for a review of the decisions of the National Labour Inspection Directorate. It needed the file to examine a claim of unconstitutionality filed by FERTICA SA. The Constitutional Chamber returned the original file under cover of an official letter of 13 June 1996 which also notified ruling N-2810-96 dismissing FERTICA's claim of unconstitutionality on the merits. As soon as the file was returned by the Constitutional Chamber in June 1996, the Minister of Labour gave priority to dealing with the appeal against the administrative decision of 29 January 1996. This shows that any allegation of delays on the Ministry's part is unjust, hasty and unfounded. The Ministry gave its decision on 29 July 1996: it dismissed the appeal and hence the claim for the quashing of the administrative decisions of 29 January and 8 March 1996, and the impugnment of the locus standi of the workers' representative; it also stated that the administrative means of redress had been exhausted. In addition, the National Labour Inspection Directorate was ordered to lodge a complaint without delay with the appropriate jurisdictional authority, in accordance with section 564 et seq. of the Labour Code, seeking the sanctions provided for in the existing labour legislation, without prejudice to any other measures which might be ordered. The actual claims were that the Mayor or Labour Judge, as the case may be, should order restitution of the rights which had been violated and compensation for the injury caused to the workers, in accordance with section 610 of the Labour Code. There was also an express claim for the immediate reinstatement of the workers affected and to payment of the arrears of their wages. The Government sends a copy of the complaint of 30 August 1996 seeking sanctions against FERTICA.

198. The Government stresses that the Ministry of Labour and Social Security conducted the proceedings in accordance with the law, and regrets that the matter has been taken to an international body without all national remedies having been exhausted, with the result that the matter is being dealt with on two fronts simultaneously. This is clearly a result of hastiness and ignorance of the fact that the rule of law prevails in the country. It also reflects a disregard for the truth which leaves the country defenceless, particularly bearing in mind that not only did the National Labour Inspection Directorate intervene to settle the dispute, but so did the Labour Relations Department of the Ministry of Labour and Social Security, which attended various hearings to clarify matters related to the complaint submitted to the ILO.

199. In view of all the foregoing, the Government seeks the dismissal of the complaint in its entirety.

C. The Committee's conclusions

200. The Committee observes that in this case the complainant organization and the Ministry of Labour authorities basically agree (according to the indications in the Government's reply) as to the existence of anti-union acts on the part of the enterprise FERTICA SA (dismissal of officials and members of the Association of Workers of FERTICA SA, and violation of the collective agreement in its entirety). In this context the Committee notes that following a report from the labour inspectorate noting these abuses, committed in September 1995, the Ministry of Labour initiated legal proceedings with a view to penalizing FERTICA and providing compensation for the injury caused, in particular by the immediate reinstatement of the workers affected and payment of the arrears of their wages and, in general, restitution of the rights which had been violated. The Committee regrets that, according to the labour inspectors' report, FERTICA engaged in unfair practices (arbitrary annulment of the collective agreement in its entirety and anti-trade union acts and trade union persecution in the form of dismissal of the executive and 265 members of the AFTE). The Committee also regrets that, following the dismissal of the trade unionists, the firm allegedly hired new workers.

201. With regard to the alleged delaying of the conclusion of the proceedings, the Committee notes the Government's statements concerning the need to ensure that the rules of due process were applied throughout, including in the various interlocutory actions and appeals brought by FERTICA in the administrative proceedings and in its complaint of unconstitutionality (which was dismissed). The Committee observes that, according to the indications in the labour inspectors' report, FERTICA's violations of the law occurred on 9 September 1995 and the above report is dated 20 November 1995. The Committee also observes that the administrative and legal actions brought by FERTICA meant that the Government was unable to go to the judicial authority before the end of August 1996 in order to obtain the penalties and compensation provided for in the legislation. The Committee notes that 11 months had passed by between the anti-union acts alleged by the complainant (September 1995) and the Ministry's judicial application for sanctions against the enterprise and compensation (end of August 1996).

202. The Committee observes that the judicial authority has still not expedited the application for sanctions and the restitution of the rights which have been violated which is not satisfactory if one takes account of the length of time that trade union leaders and members have to wait before their rights are restored. In this connection, the Committee wishes to recall 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, constitutes 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 Committee on Freedom of Association, 4th (revised) edition, 1996, para. 749]. The Committee expresses its concern at the slowness and the lack of efficiency of the procedures in a considerable number of cases and requests the Government to take measures to ensure that the procedures are carried out rapidly.

203. In this case, bearing in mind the evidence of anti-union acts noted by the labour inspectors, their serious consequences for the trade union and its members, the time that has elapsed since the violations of trade union rights, and the delay that may still occur in the legal proceedings (possible appeals or further interlocutory actions), the Committee asks the Government to take further steps with a view to mediating between the parties so that the dispute between the AFTE and the FERTICA enterprise may be settled promptly through negotiations and taking fully into account the provisions of Conventions Nos. 98 and 135 ratified by Costa Rica. In particular, the Committee asks that all those who were dismissed on grounds of their trade union office or membership be reinstated in their jobs, and that the collective agreement be observed.

204. Lastly, the Committee regrets that the Government has not answered the allegation that a riot squad was sent to break up a peaceful demonstration that the workers had been conducting outside the FERTICA premises since 11 September 1995. In this context, the Committee points out to the Government that "taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. However, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries" [see Digest, op. cit., para. 586]. The Committee asks the Government to ensure that in future this principle is observed.

The Committee's recommendations

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

The Committee asks the Government to take further steps with a view to mediating between the parties so that the dispute between the AFTE and the FERTICA enterprise may be settled promptly through negotiations and taking fully into account the provisions of Conventions Nos. 98 and 135 ratified by Costa Rica. In particular, the Committee asks that all those who were dismissed on grounds of their trade union office or membership be reinstated in their jobs and that the collective agreement be observed.
The Committee expresses its concern at the slowness and lack of efficiency of the procedures concerning anti-union discrimination in a considerable number of cases and requests the Government to take measures to ensure that these procedures are carried out rapidly.
The Committee asks the Government to ensure observance, in future, of the principle that "taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. However, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries."

Case No. 1805

Interim report

Complaint against the Government of Cuba

presented by

the International Confederation of Free Trade Unions (ICFTU)

Allegations: Refusal to grant legal personality to a trade union
organization; injuries, detentions, threats and other acts against
officials of independent trade union organizations

206. The Committee examined this case at its November 1995 meeting and presented an interim report to the Governing Body [see 300th Report of the Committee, paras. 399 to 427, approved by the Governing Body at its 264th Session (November 1995)].

207. The Government sent new observations in a communication dated 12 September 1996.

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

A. Previous examination of the case

209. A number of allegations remained pending in the previous examination of the case, in which the complainant organization highlighted various acts committed against trade union officials or members of independent trade union organizations: injuries, detentions, threats, acts of intimidation and harassment, refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC) and anti-union dismissal.

210. Specifically, the complainant organization had stated that:

according to the Confederation of Democratic Workers of Cuba (CTDC), Ms. Edith Lupe, Organization Secretary of the Trade Union Front of the CTDC, was summoned to appear on 24 May 1994 at the Department of State Security, located in the Capri district, in the Havana municipality of Arroyo Naranjo, by the commander of this body. Inside the aforementioned premises, the officer threatened her with offensive and gross language. He told her he "was going to make her disappear or imprison her for three years" if she did not relinquish her organizational activities in the CTDC ranks. After this verbal aggression, a body search was carried out and Ms. Lupe was stripped and subjected to a thorough examination. She was then threatened once again and placed in a cell which the Cuban agents use to carry out further acts of intimidation. Before she left the cell, Officer Cortina delivered a stern warning to the effect that her home might be attacked by "mobs" throwing stones and that she might be attacked and beaten by "neighbours from the district";
on 2 August 1994, on Avenida 19 of the Siboney district, in the municipality of Playa, Havana, Mr. Lázaro Corp Yeras, General Secretary of the Union of Cuban Workers (USTC) and his younger son, Ray Corp Morales, were severely beaten up with sticks by three men. Both suffered serious injuries. The ICFTU states that it has reason to believe that the aggressors had links with the Cuban security forces. This assault is the fifth in less than three months against Mr. Lázaro Corp.

211. Furthermore, in its last communication, dated 7 July 1995, the complainant organization had alleged that:

the Department of State Security is severely harassing members of the National Executive Committee and the Trade Union Fronts which make up the Confederation of Democratic Workers of Cuba (CTDC). This is the case of Juan Guarino Martínez Guillén (President), Jesús Cárdenas López (Vice-President) and René José Montero Garay (Secretary responsible for International Relations). This organization has also submitted the necessary documentation in order to obtain legal personality but to date it does not seem to have the slightest chance of obtaining its registration;
on 29 September 1994, at 1 p.m., Mr. René José Montero Garay was ordered to appear at the Unit of the National Revolutionary Police (PNR) in calle Dragones at the corner of Lealtad, in the centre of Havana. He was questioned by several officials of this repressive body, who threatened him and warned him that he himself and Martínez Guillén and Jesús Cárdenas would be sentenced to 12 and 15 years' imprisonment if they pursued their militant activities in the CTDC and if they continued defending the Cuban working class. Moreover, on 10 November 1994, at 2.40 p.m., Mr. Juan Guarino Martínez Guillén, President of the CTDC, and Mr. Jesús Cárdenas López, Vice-President of the same organization, were arrested by the Department of State Security. They were taken to the nearest police station, where they were subjected to brutal and offensive interrogation;
according to the complainant organization's sources, Mr. Eduardo Lamas Campos, a member of the Trade Union Front of the "Julio Antonio Mella" sugar mill in Santiago de Cuba, Oriente, was expelled from his workplace simply because he had called for improvements in working conditions and food, since the food available was small in quantity and of very poor quality.

212. In its reply, the Government cited the difficulties of locating information concerning the persons mentioned in the complaint, since none of these persons has trade union status, the events in question are not of a trade union nature, the persons concerned do not represent any group of workers, nor do they themselves have any employment relationship with any enterprise or labour body in Cuba, all of which places the Committee on Freedom of Association in a situation of having to deal with events which have no relationship with the laudable task which it carries out of defending trade union freedoms.

213. Referring to various allegations, the Government made the following observations:

the ICFTU complaint mentions the name of Edith Lupe. This name, as well as the description of the events, are incorrect. On the basis of some of the elements contained in the communication, it was possible to determine the real identity of the person, and to ascertain what really happened. The matter concerns Enid Amelia Luque Rosales and not Edith Lupe, as stated by the ICFTU. On 24 May, she was summoned to the 9th station of the National Revolutionary Police, located in the Capri district, and was given a warning for having carried provocative activities against public order, in accordance with the applicable legislation. She was summoned and received in one of the offices of the above-mentioned police station, not in the Department of State Security, as erroneously stated by the ICFTU. She remained in this office for a short period of time, and was not placed in any cell or subjected to any body search. The Government adds that, according to statements made by Enid Amelia Luque Rosales, the intention of the provocative acts which were carried out in the company of four delinquents was to obtain favours and guarantees from the Section of United States Interests in Havana, with a view to obtaining a visa for permanent residence in the United States. Enid Amelia Luque Rosales left the country in August 1994;
as regards Lázaro Corp Yeras, the Government states that it is totally erroneous to say that he was assaulted by members of the Ministry of the Interior. If this person, as he says, was the victim of any act of violence by unknown persons, he could have made a denunciation to the police, which he did not do. Lázaro Corp Yeras left the country in September 1994, when he went to live in the United States;
the Committee on Freedom of Association should be cautious about statements from persons of doubtful credibility such as those concerning the persons mentioned in the complaint, which do not give the true identity of the persons, or the address of their residence, the name and address of the workplace where they are supposedly leaders of workers' collectives, and who have not even established their status as workers at the time in question;
there are 18 national sectoral trade unions in Cuba, whose members include around 98 per cent of the workers in the country. Freedom of association is exercised in all workplaces by workers' collectives and their trade union representatives are nominated and elected by the workers themselves. Under the Cuban labour relations system, the different bodies of the trade union organizations participate systematically, through a wide variety of fora, in the decision-making process on matters of interest to workers. According to the Government, the ICFTU has been misinformed; the facts have been distorted by unscrupulous persons who claim to be trade unionists, and their only purpose is to obtain personal benefit through recourse to international procedures and propaganda.

214. The Committee formulated the following recommendations [see 300th Report, para. 427]:

the Committee requests the Government to open a judicial inquiry into the serious injuries allegedly inflicted on the trade union official Lázaro Corp and his younger son, and to keep it informed in this respect;
as regards the allegations concerning the arrest of and threats and other acts of harassment against Enid Amelia Luque, Organization Secretary of the Trade Union Front of the Confederation of Democratic Workers of Cuba, the Committee requests the Government to provide the more detailed information to which reference is made in the conclusions, so that it can examine the allegations in full knowledge of the facts [in this respect, in its conclusions, the Committee had pointed out that the Government had not explained the substance of the "acts of provocation against public order" by Enid Amelia Luque and "four delinquents", and which resulted in a "warning" being delivered in the offices of the national police, or of the "demonstration" against her conduct by neighbours from the district, or the content of the "warning" by the national police [see 300th Report, para. 425]];
finally, noting that the Government had not replied to the allegations made by the complainant organization in its communication of 7 July 1995, the Committee requests the Government to furnish its observations on:
the refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC);
the arrest and harassment of and threats against several officials of the CTDC;
the expulsion from his work centre of a trade unionist of the Trade Union Front of the "Julio Antonio Mella" central organization after he had called for better working conditions.

B. New observations of the Government

215. In its communication of 12 September 1996, the Government states that the inquiries carried out have ascertained that Mr. Lázaro Corp Yeras and his son were not attacked by "persons linked with the Cuban security forces", as stated by the complainant organization without providing any proof. No formal complaint to this effect has been lodged with any police unit. It was also ascertained that Mr. Lázaro Corp Yeras is not a trade union official, nor does he represent any workers' collective or have an employment relationship with any workplace. This person left the country in September 1994.

216. As regards the allegations concerning Ms. Enid Amelia Luque, the Government states that in addition to the information given in its previous reply of 13 July 1995, which it confirms, according to the inquiries made, Ms. Enid Amelia Luque caused a public scandal and disorder near her place of residence, making offensive statements to which the neighbours reacted by expressing rejection of her conduct. There were no acts of violence, only a public scandal, disrupting neighbourly relations. The Government adds that the warning in question was issued in accordance with procedural law, at a meeting with police instructors at which the person is informed of the offence and warned not to repeat it. It is not true that Ms. Enid Amelia Luque was placed in a cell or subjected to a body search. She spent a short period of time in the police office, only in order to comply with the established procedures. Ms. Enid Amelia Luque is not a trade unionist, nor is she a union official, nor does she represent any workers' collective. She does not have an employment relationship with any workplace. She left the country in August 1994.

217. As regards the allegations presented by the ICFTU in its communication of 7 July 1995, the Government states that the inquiries carried out have ascertained that there is no trade union called the Confederation of Democratic Workers of Cuba in any enterprise or labour body in the entire country. The persons referred to in the ICFTU's letter dated 7 July 1995, Juan Guarino Martínez Guillén, Jesús Cárdenas López and René José Montero Garay, are not trade union officials, nor have they been subjected to threats and harassment. These persons have been neither nominated nor elected in any workplace in the country as representatives of any workers' collective. Juan Guarino Martínez Guillén left the country in March 1996.

218. As regards the alleged expulsion of a trade unionist who, according to the allegations of the ICFTU, was a member of a Trade Union Front of the "Julio Antonio Mella" sugar mill, Mr. Eduardo Lamas Campos, the Government states that the inquiries carried out have ascertained that this person was transferred from his post as a disciplinary administrative measure on three occasions for unjustified absence from work and for being disrespectful to his superiors and fellow workers. These measures were imposed in accordance with the labour legislation in force, and the worker submitted to them without availing himself of the remedies laid down in the legislation. On 10 October 1992, he requested leave from his workplace in order to evade another labour sanction for the same reasons. Mr. Eduardo Lamas Campos has never been nominated or elected by the workers of the "Julio Antonio Mella" sugar mill as a union official. Eduardo Lamas Campos has a criminal record. In 1986 he was sentenced to a year's imprisonment by the courts for robbery with use of force.

219. The Government states further that there is no trade union front called the Confederation of Democratic Workers of Cuba in the "Julio Antonio Mella" sugar mill. The inquiries carried out ascertained that the sugar mill has 77 trade union sections affiliated to the National Union of Sugar Industry Workers. These 77 trade union sections have a total of 5,135 members, i.e. 100 per cent coverage. The union leaders at the Julio Antonio Mella sugar mill were nominated and elected by the workers themselves, who participated in trade union activities in accordance with their rules and by-laws in full freedom and have not had to request authorization from any state body for the exercise of their activities to defend workers' interests and rights, in accordance with the provisions laid down in section 13 of the Labour Code. Mr. Eduardo Lamas Campos has never been nominated or elected as a trade union official.

220. The Government specifies that at Mr. Eduardo Lamas' new workplace where he began to work after requesting leave from the "Julio Antonio Mella" sugar mill, the agricultural machinery repair shop belonging to the Agricultural Machinery Enterprise, he was again sanctioned for having taken property belonging to the workplace (700 tomato seedlings). As can be seen, the disciplinary measures imposed on Mr. Eduardo Lamas Campos were the result of indiscipline at work and bear no relation to trade union activities.

221. The Government states in addition that the ICFTU is distorting the facts and relying on isolated persons who do not represent any workers' collectives and who in one way or another have acted in violation of the legislation in force, committing acts which bear no relation to trade union activities, and attempts to present them to the Committee as trade unionists when in fact none of the persons referred to has carried out any trade union activities, nor do they represent any workers' collective. The Government requests the Committee on Freedom of Association to reach definitive conclusions in this case, since these are not trade union activities such as those protected in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

C. The Committee's conclusions

222. The Committee observes that the allegations pending refer to different acts committed against trade union officials or members of independent trade union organizations: injuries, detentions, serious threats, acts of intimidation and harassment, refusal to grant legal personality to the CTDC and an anti-union dismissal.

223. As regards the allegations concerning the serious injuries allegedly inflicted on trade union official Mr. Lázaro Corp and his younger son, the Committee notes that the Government states that (1) the inquiries carried out have ascertained that they were not attacked by persons linked with the Cuban security forces, nor has any formal complaint to that effect been lodged; (2) Mr. Lázaro Corp Yeras is not a trade union official, nor does he represent any workers' collective, nor is he in an employment relationship in any workplace; (3) he left the country in September 1994. In view of these statements and the fact that Mr. Corp left the country in September 1994, the Committee concludes that in these circumstances it does not appear possible to open a judicial inquiry into the allegations as requested by the Committee at its previous meeting.

224. As regards the allegations concerning the detention, threats and harassment against Ms. Enid Amelia Luque, Secretary of the Trade Union Front of the Confederation of Democratic Workers of Cuba, the Committee notes that the Government acknowledges that this person has spent some time in a police station, albeit for a brief period, and that she had been issued with a warning, as provided in procedural law, during which the person is informed of the offence and warned not to repeat it. On the other hand, the Government denies that Ms. Enid Amelia Luque is a trade union official or member, that she was held in a cell and that she was subjected to a body search, and emphasizes that the reason for the warning was offensive statements (the Government does not indicate the content of these statements) which provoked a scandal among her neighbours. In view of the discrepancy between the complainant's and the Government's versions, the Committee points out the principle that "measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 77]. Lastly, the Committee notes that Ms. Enid Amelia Luque left the country in August 1994. The Committee wishes to emphasize that those responsible for anti-union discrimination should be sanctioned.

225. As regard the allegations concerning the detention and interrogation of and threats against Juan Guarino Martinez Guillén and Jesús Cárdenas López (respectively, President and Vice-President of the CTDC) and the police summons of and threats against Mr. René José Montero Garay (Secretary responsible for International Relations of the CTDC), the Committee notes that the Government denies that they are trade union officials and have been subjected to threats or harassment, and states that Juan Guarino Martinez Guillén left the country in March 1996. The Committee observes that the Government has not expressly denied the detention and interrogation of Mr. Juan Guarino Martinez Guillén and Mr. Jésus Cárdenas López, or the police summons of Mr. René José Montero Garay. The Committee therefore once again draws the Government's attention to the principle stated in the previous paragraph concerning the summoning and questioning of trade unionists.

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

The Committee must therefore take into account the fact that there exists only one officially recognized central trade union organization mentioned in the legislation and that on previous occasions, complaints have been made concerning the refusal to grant official recognition to trade union organizations outside the existing officially recognized trade union structure. In this same way, in its last report (1995), the Committee of Experts on the Application of Conventions and Recommendations requested the Government "to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent trade union organizations of their own choosing, outside any trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom" [see Report III (Part 4A), ILC, 82nd Session, 1995, p. 163].

227. As regards the allegation concerning the expulsion of a trade unionist of the Trade Union Front of the "Julio Antonio Mella" sugar mill (Mr. Eduardo Lamas Campos) for having asked for improvements in working conditions, the Committee notes that the Government states that this person was not a trade union official and that he had been transferred from his post as a disciplinary measure, in particular for unjustified absence from work, had left his job, and had subsequently been again penalized at his new workplace for having appropriated enterprise property.

The Committee's recommendations

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

As regards the allegations concerning the summoning and/or temporary detention of trade unionists, the Committee emphasizes the principle that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. The Committee wishes to emphasize that those responsible for acts of anti-union discrimination should be sanctioned.
As regards the allegation concerning the refusal to grant legal personality to the Confederation of Democratic Workers of Cuba (CTDC), the Committee requests the Government to state whether it has received the documents applying for the granting of legal personality to the CTDC mentioned by the complainant organization and, if so, to state what action has been taken. In this respect, the Committee would refer to the comments of the Committee of Experts requesting the Government "to guarantee in law and in practice the right of all workers and employers, without distinction whatsoever, to establish independent trade union organizations of their own choosing, outside any existing trade union structure if they so desire (Article 2 of the Convention), and the right to elect their representatives in full freedom (Article 3 of the Convention)".

Case No. 1861

Definitive report

Complaint against the Government of Denmark

presented by

the Association of Danish Clinical Dietitians (ADCD)

Allegations: Violation of bargaining rights and
interference in union activities

229. The Association of Danish Clinical Dietitians (ADCD) submitted a complaint of violations of trade union rights against the Government of Denmark in communications dated 30 November and 9 July 1995.

230. The Government sent its observations on this case in communications dated 28 June and 8 August 1996.

231. Denmark 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

232. In its communication of 30 November 1995, the ADCD states that its complaint concerns a letter of 21 September 1995 from the Director of hospitals in the Region of Vejle to the members of the "ERFA-gruppe", a group for the exchange of information and experience. A translation of this letter can be found in the appendix to this report.

233. By way of background information, the complainant indicates that, on 9 August 1995, it had initiated a boycott against the Hospital of the Region of Vejle, instructing its members not to enter into any employment contracts with the Hospital because its job descriptions for clinical dietitians implied that they were employed in work for which they were not skilled and educated and that they were in fact employed as catering officers. Four dietitians were subsequently dismissed on 11 August 1995 and a case has been brought by the complainants to the High Court of the Western Circuit in this regard arguing that the revised job descriptions imply a significant change in the employment relations of clinical dietitians contrary to Danish labour law. This case is still pending.

234. According to the complainant organization, the press showed a considerable interest in this matter and held a number of interviews with their president and vice-president. Correspondence then took place in September 1995 between the Director of Health of the Vejle Region and the legal counsel for the complainant organization in which the complainant organization was requested to elaborate upon and prove a number of statements which it had made during these interviews.

235. When the complainant organization became aware of the letter of 21 September 1995 to the ERFA-group which is the subject of this complaint, they wrote to the Director informing him that the statements made therein were incorrect, unspecified and libellous and requested that the letter be revoked. No such action has been taken, however.

236. The complainant organization understands the letter to the ERFA-group to be in reaction to the following: its filing a writ with the High Court of the Western Circuit; its initiating a boycott against the hospital of Vejle; and its interviews with the local press. The complainant affirms that it is an organization of clinical dietitians for the furtherance and defence of the interest of clinical dietitians covered by the scope of Convention No. 87 and yet the letter of 21 September presents the complainant as a grass roots organization without respect for Danish labour market principles. According to the complainant, the Director's letter to the ERFA-group violates Article 3(2) of Convention No. 87 by interfering in the rights of the complainant organization to carry out its administration and activities free from interference by the public authorities, as well as Article 2 of Convention No. 98. The complainant organization also states that this letter violates Article 4 of Convention No. 98 whereby, according to the complainant, the Hospital of the Region of Vejle is obliged to encourage and promote the full development and utilization of machinery for voluntary negotiations between the Hospital and the complainant. The complainant organization adds that this letter constitutes an especially severe harassment since it has been sent to an undefined group of members of the ERFA-group.

237. The complainant organization clarifies in its communication of 9 July 1996 that the case brought before the high court concerns questions relating to the individual rights of the four dismissed dietitians and does not actually challenge the libellous statements made in the Director's September letter for which no legal action has yet been taken at the national level. Furthermore, the complainant organization emphasizes that it does not dispute the right of the Hospital Director to exchange views and information, including critical views, with the ERFA Group. The complaint focuses rather on the harassing tone and the unsubstantiated, incorrect kind of information given which, in the complainant's view, constitutes serious harassment and impairs its right to freedom of association with respect to hospitals in Denmark.

238. Finally, the complainant organization indicates that it organizes more than 90 per cent of all clinical dietitians in Denmark and that, while it is correct that it is not a party to a collective agreement with the Hospital of Vejle, it is incorrect and harassing to describe the organization as having no competence whatsoever, particularly as it may be presumed that the Director's letter was sent to all other public hospital directors in Denmark.

B. The Government's reply

239. In its communication of 28 June 1996, the Government confirms the circumstances surrounding the boycott initiated on 9 August 1995 and affirms that the Hospital Director's letter of 21 September informed the members of the ERFA-group of the disagreements between the Hospital of Vejle and the Association of Danish Clinical Dietitians (ADCD), including the work stoppage in August.

240. The Government states that it will not make any comments on the questions relating to the pending legal action concerning the job description of dietitians, as it considers that it would be more appropriate to await the court's decision. It therefore limits its reply to the matters concerning the letter of 21 September.

241. The Government considers that the disagreement is originally the result of the break-off of certain members of the Danish Dietetic Association (DDA) to create their own association, the ADCD. At that time, the DDA had a collective agreement with their employer (the Association of County Councils in Denmark) which the employer decided to maintain to cover the members of the ADCD. While under Danish law, a "breakaway union" may seek to obtain its own collective agreement, there is no obligation on the employer to enter into one, particularly if the work in question is already covered by an agreement.

242. In such situations, the Association of County Councils generally enters into collective agreements only with the organizations which represent the majority of a given staff group. Any minority organizations are encouraged to make demarcation agreements as a basis for the allocation of negotiation rights. The counties cannot and are not allowed to interfere with the union affiliation of the staff and it is contrary to Danish law to take union affiliation into consideration in connection with the recruitment of employees in the public sector. Accordingly, it would be contrary to Danish law if the Hospital Director in his capacity as a public sector employer has encouraged the members of the ERFA-group not to employ dietitians. Moreover, it is contrary to the Act on Protection against Dismissal on Grounds of Union Affiliation to dismiss an employee because he or she is a member of an association or union or of a specific association or union.

243. The Government admits that the letter of 21 September expresses criticism with respect to the activities of the ADCD. It adds, however, that these comments should be seen in conjunction with the ongoing dispute of whether the dietitians are more or less qualified than the catering officers and whether it is, therefore, justified that the catering officers are the superiors of the dietitians. Whether the letter also includes a hidden request not to hire employees who are members of the ADCD can presumably only be determined in a legal action.

244. The Government also finds it difficult to see how the letter can be perceived as an interference in the internal affairs of the ADCD, particularly since it was not sent to the members of the Association.

245. The Government recalls that certain aspects of this matter are currently the subject of a pending legal action and therefore suggests that consideration be given to letting this matter await the High Court's decision.

246. In summary, the Government considers that: the core of this matter is a dispute between the DDA and the ADCD; while it is fully legitimate for the ADCD to seek recognition and try to obtain its own collective agreement, the employer would naturally try to take its stand on the collective agreement with the DDA and avoid entering into additional collective agreements concerning, at least to some extent, the same work; and while the tone of the letter of 21 September is no doubt critical with respect to the activities of the ADCD, this should be seen in the light of the ongoing dispute and it cannot be determined on the existing basis whether an unlawful encouragement has been expressed not to employ members of the ADCD.

247. In its communication of 8 August 1996, the Government notes the issues raised by the complainant organization concerning admissibility and recalls that no attempt has been made to ascertain whether the contents of the letter are contrary to Danish law. The Government also notes that it is the view of the complainant that the letter does not include a hidden request not to hire employees who are members of the ADCD.

C. The Committee's conclusions

248. The Committee notes that the allegations in this case refer to the contents of a letter from the Director of Hospitals in the Region of Vejle to the ERFA-group which, according to the complainant, unduly interferes with its right to organize its activities and its collective bargaining rights.

249. Firstly, as concerns the Government's initial indication that certain aspects of this matter are currently the subject of a pending legal action and that consideration should be given to letting this matter await the High Court's decision, the Committee notes that the case brought before the court does not concern the letter of 21 September which is the subject of this complaint but rather the question of whether the revised job descriptions for clinical dietitians contravene Danish law. The Committee does not, therefore, consider that the outcome of the court case would affect its examination of the complaint. As concerns the fact that no appeal has been made at the national level concerning the contents of the letter, the Committee would recall that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, Annex I, para. 33.]

250. As concerns the allegation that this letter constitutes a violation of the hospital's duty to encourage and promote machinery for voluntary negotiations, the Committee notes the Government's indication that, when there is a situation where there is a breakaway union, the Association of County Councils would generally enter into collective agreements only with the majority organization, encouraging minority organizations to make demarcation agreements as a basis for the allocation of negotiation rights. It further notes, however, that the letter from the Hospitals' director states: "the eligible negotiator for the dietitians is the Danish Dietetic Association (DDA) which negotiates the collective agreement. However, most dietitians are not members of this association, but of ADCD which does not have any competence whatsoever." [Emphasis added.]

251. Since dietitians, as a category of workers, appear to be most represented by the ADCD yet not recognized by the hospital director, the Committee would recall the principle according to which employers, including governmental authorities, should recognize for collective bargaining purposes the organizations representative of the workers employed by them. The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employers' recognition of that union for collective bargaining purposes. [See Digest, op. cit., paras. 821 and 824.] The Committee therefore requests the Government to ask the competent authorities to take the necessary measures to ensure that the ADCD is not discriminated against by the employer in relation to collective bargaining, particularly as the hospital director himself has admitted that it is the most representative organization.

252. As concerns the effect of the Director's letter on the complainant organization's right to carry out its activities without interference as provided for under Article 3(2) of Convention No. 87 and Article 2 of Convention No. 98, the Committee notes that the Government admits that this letter is critical of the activities of the ADCD but must be seen in the context of the ongoing dispute. Given that the complainant actually states in its second communication that there is no dispute as to whether the letter includes a hidden request not to hire employees who are members of its organization but rather claims that the letter impairs their own rights as an organization towards hospitals, the Committee notes that the complaint does not raise any claim of anti-union discrimination. If any dispute were to arise in this regard, the Committee considers that the question of whether the letter might actually lead to discrimination against ADCD members can only be determined by the courts. As concerns the complainant's right to organize its activities freely under Article 3 of Convention No. 87, the Committee does not see how the letter, which was not sent to the members of the ADCD, could interfere with the organization's internal affairs. Finally, the Committee considers that the mere expression of criticism in the particular circumstances of this case cannot be seen as interfering in the organization's rights with respect to the other hospitals in violation of Article 2 of Convention No. 98.

The Committee's recommendation

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

The Committee requests the Government to ask the competent authorities to take the necessary measures to ensure that the ADCD is not discriminated against by the employer in relation to collective bargaining, particularly as the hospital director himself has admitted that it is the most representative organization.

Appendix

Vejle County
Vejle Hospital
The management of the hospitals in the middle zone

21 September 1995

To the members of the experience exchange group

Dear colleague,

I write to you in the light of some very bad experiences we have had here at Vejle Hospital with the Association of Danish Clinical Dietitians (ADCD).

You may also expect to experience their strange behaviour which is well beyond common practice and decency.

At this hospital the matter has had the unhappy ending that we have had to dismiss all our dietitians because of illegal refusal to obey instructions, and the Association has subsequently dragged everybody's name in the mud.

The Association has brought a test case alleging that dietitians cannot be organised as part of the catering department/kitchen, which they have been at Vejle Hospital for 15-20 years, and seem to be at the central hospitals in western Denmark in general.

As a consequence of this, ADCD is of the opinion that by definition catering officers are unqualified to be in charge of the dietitians. The argument is that their period of training is not as long as that of dietitians. The dietitians have then made great efforts to demonstrate this.

The eligible negotiator for the dietitians is the Danish Dietetic Association which negotiates the collective agreement. However, most dietitians are not members of this association, but of ADCD which does not have any competence whatsoever.

After having made the acquaintance of ADCD, I must conclude that the Association lacks knowledge and respect of the most basic rules and contractual relationships in the labour market.

On the basis of my own experience I believe that you should be very much aware of any measures taken by the Association in relation to your hospital -- as well as any "management problems"/"cooperative problems" in your catering department, where the catering officer and the members of the Association are players.

For your information, I send you a press release and an official statement on our "case".

Yours sincerely,

(Signed) Chief Executive Officer.

Case No. 1874

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

Complaint against the Government of El Salvador

presented by

the General Industrial Trade Union
of Health Workers (SIGESAL)

Allegations: Refusal to recognize a trade union;
cancellation of the registration of the board of management;
transfer of trade union officials; threats of
dismissal and search of trade union premises

254. The complaint in this case is contained in a communication from the General Industrial Trade Union of Health Workers (SIGESAL), dated 12 February 1996. Subsequently, the SIGESAL presented additional information in a communication dated 7 May 1996.

255. The Government sent its observations in communications dated 8, 23 and 28 May 1996.

256. El Salvador has not ratified either 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

257. In its communication of 12 February 1996, the General Industrial Trade Union of Health Workers (SIGESAL) states that it has been legally established for 16 years with a legal personality and that until May 1995, it was known as the Nursing Personnel Craft Union of El Salvador; however, in agreement with the association's general assembly, it opted to transform from a "craft" union (sindicato de gremio) into an "industrial" union (sindicato de industria) after submitting, in May 1995, the reforms of its by-laws. However, since that date the Ministry of Labour has not at all responded to these reforms. The complainant organization points out that the trade union has 256 members, most of whom are public officials, that it is one of the most representative in the public health sector and that since the general assembly approved the change of the trade union's legal nature and in accordance with the reforms of its by-laws, it has been operating in this capacity.

258. The complainant organization adds that, on 1 April 1995, the ordinary general assembly elected the board of management for the 1995-96 period and that it duly submitted the new list of officials to the Ministry of Labour; furthermore, on 24 May of the same year, it legally registered this board with the corresponding credentials. Notwithstanding these facts, on 22 January 1996, the Minister of Public Health and Social Security requested the National Department of Social Organizations of the Ministry of Labour to annul the resolution under which instructions were given to register the union's board of management, whose members are employees at the Rosales Hospital, on the grounds that public officials are not entitled to belong to a trade union and therefore to be elected as officials. Subsequently, the National Department of Social Organizations of the Ministry of Labour, without paying any heed to the trade union's opinion, decided on 25 January 1996 to annul the resolution acknowledging the board of management and ordered that: the registration of this board should be cancelled; the officials should return the credentials entrusted in them to the Ministry of Labour; and the workers in the Rosales Hospital belonging to the union should resign because they were not entitled to belong to it. Finally, the complainant organization states that it submitted a request to the respective Minister to repeal this resolution; to date, however, it has not received a reply and this appeal is pending. The hospital administrator also ordered the elected officials to hand over the trade union premises and the trade union assets on the grounds that they were not entitled to use these because they do not legally represent the workers' organization. Furthermore, the hospital administration is planning to close the trade union premises with the backing of the national civil police.

259. In its communication of 7 May 1996, the complainant organization states that the management of the Rosales Hospital ordered that all the workers should be informed of the Ministry of Labour's resolution to annul the registration of the union's board of management and to require workers to resign from the union; it proceeded to return trade union contributions. Furthermore, in November 1995, workers started to be threatened with dismissal if they did not resign from the trade union. The complainant organization adds that the Secretary-General, the First Disputes Secretary and four other trade union officials were transferred without being previously consulted; it encloses copies of the transfer orders. Finally, the complainant organization alleges that the management of the Rosales Hospital, accompanied by vigilantes and the national police, made a violent search of the SIGESAL offices.

B. The Government's reply

260. In its communication of 8 May 1996, the Government states that the Nursing Personnel Craft Union of El Salvador was set up on 10 April 1978, that its by-laws were approved on 15 December 1978 and that all the signatories to the act of constitution of the union stated that they were members of the nursing profession; furthermore, in article 5, paragraph 1, of the above-mentioned by-laws, it is stipulated that "only workers employed in nursing the sick shall be accepted as members of the trade union". In accordance with sections 47 and 204 of the Labour Code, private employers and wage earners, as well as workers in independent social institutions, are entitled to associate freely by forming occupational associations. Section 2 of the Labour Code states that it applies to employment relationships concluded by the State, local authorities and independent public institutions and their workers; however, it does not apply to relationships of this kind under public law and those that have been created by an Administrative Act -- as well as the appointment to a post under the Salaries Act financed by the general funds and special funds of these institutions.

261. The Government adds that on 7 April 1995 documentation was submitted to the National Department of Social Organizations concerning the election of the general board of management of the Nursing Personnel Craft Union of El Salvador, and that this department issued a resolution on 24 May registering this board. On 22 January 1996, the Minister of Public Health and Social Welfare requested this department to annul the said resolution because the board of management was entirely made up of employees of the Rosales Hospital who, because they worked for a public institution dependent upon the Minister in question and were not members of the nursing profession, could not belong to it. The Government states that section 209 of the Labour Code provides in its first paragraph that a craft union consists of workers engaged in the same occupation, craft, trade or speciality. Consequently, the National Department of Social Organizations issued its resolution on the following grounds: the Labour Code does not apply to employees or workers who are specifically appointed under the Salaries Act, which is the case of workers at the Rosales National Hospital because it is a dependency of the Ministry of Public Health and Social Welfare. In accordance with the definition of a craft union given in the Labour Code, a union of this type should be made up of workers in a particular branch of activity -- in this specific case in the nursing profession, as stated by the founding members of the trade union on 10 April 1978 who set up a union for nursing personnel. The members of the board of management, however, carry out duties in this hospital which differ from those qualifying for membership of the craft trade union, i.e. technicians, workers, boiler-workers, vigilantes, storeroom assistants, telephone operators and cooks -- and none are actually involved in the nursing profession; and therefore all workers employed in the Rosales Hospital in another capacity should resign on these grounds.

262. The Government states that although the wording used in the by-laws that members must be part of the nursing profession is sufficiently wide in scope, when taken in conjunction with the Labour Code, it is evident that workers, telephone operators and cooks are not looking after the sick but carrying out completely different functions. The case is different for other types of trade unions, such as works or industrial trade unions, to which all workers in an enterprise might belong irrespective of the actual work they do; it suffices that they work in the same enterprise. According to the Government, the complainant organization may not -- and should not -- have members who do not work as nurses, given that the Labour Code does not apply to workers employed by the Rosales National Hospital because their appointment is specifically governed by the Salaries Act. The Government adds that the union in question may continue to operate as long as all its members are engaged in the nursing profession.

263. In its communications of 23 and 28 May 1996, the Government states that workers in El Salvador enjoy full freedom of association and right of organization. The only restrictions placed on these rights by law is that there should be no undermining of the physical integrity or private life of individuals -- and this is precisely what the Nursing Personnel Craft Union of El Salvador (SIGESAL) is trying to do by claiming that it wants to transform from a craft union to an industrial union; however, it is not enough merely to transform the by-laws of a craft union, given that Salvadorian legislation provides that both these categories of union must fulfil certain vital requirements. For example, a craft union consists of workers engaged in the same occupation, craft, trade or speciality; and an industrial trade union consists of employers or workers belonging to enterprises engaged in the same branch of industry, commerce or services (section 209 of the Labour Code). Finally, the Government points out that the Rosales Hospital is dependent on the Ministry of Public Health and Social Welfare and that consequently its workers are public officials; in this capacity they are amongst those specified by the Labour Code as not being entitled to set up freely occupational or trade union associations (section 204 of the Labour Code).

C. The Committee's conclusions

264. The Committee notes that the allegations in this case refer to the refusal of the administrative authorities to recognize the transformation of a craft union into an industrial union and the annulment of the registration of its board of management, as well as to the transfer of trade union officials, threats of dismissal against trade union members and the search of trade union premises.

265. Concerning the alleged refusal of the administrative authorities to recognize the change in status of the Nursing Personnel Craft Union of El Salvador to become an industrial union (General Industrial Trade Union of Health Workers) and the annulment of the registration of the board of managers -- which had initially been registered -- the Committee notes the Government's reply to the effect that: (1) when the craft union in question was set up (1978) all the founding members stated that they were engaged in the nursing profession; (2) in May 1995 the National Department of Social Organizations registered the board of management of the Nursing Personnel Craft Union of El Salvador; (3) in January 1996 the Minister of Public Health and Social Welfare requested the administrative authorities to annul the registration of the board of management on the grounds that it consisted totally of employees of the Rosales Hospital who, because they worked for a public institution and did not exercise the profession of nurse (such as workers, technicians, telephone operators, vigilantes, etc.) could not, in accordance with the by-laws of the craft union, be members of the board of management; (4) the administrative authorities annulled the registration of the board of management taking into account the arguments put forward by the Ministry of Public Health; (5) transforming a craft union into an industrial union requires more than merely reforming the by-laws as it must comply with the requirements laid down in the Labour Code; and (6) given that the Rosales Hospital is dependent upon the Ministry of Public Health and Social Welfare its employees are public officials, who are not included amongst those who have freedom of association under the Labour Code.

266. In this respect, the Committee notes that the Government refers in its reply to two different issues. On the one hand, it states that the workers in the Rosales Hospital are public officials and, as such, are not covered by the scope of the Labour Code and consequently do not enjoy the right of organization; on the other hand, it points out that the registration of the board of management of the union was annulled because its members were not carrying out the profession of nurse as stipulated in the former by-laws of the "craft" trade union (union of workers in the same occupation).

267. As regards the first issue, the Committee reminds the Government that workers and employers, without distinction whatsoever, including public officials, should have the right to establish organizations of their choosing and to join these organizations, with the only condition that they should respect the by-laws of these organizations. In these circumstances, the Committee urges the Government to take the necessary steps to amend the legislation so that public officials, including hospital staff, may enjoy the right to establish and join organizations of their choosing. The Committee urges the Government to take measures to bring its legislation into conformity with the principles of freedom of association and to keep it informed on any measures that it might adopt in this respect and reminds it that the ILO's technical assistance is at its disposal.

268. As concerns the second issue, the Committee notes that the complainant organization submitted changes to its by-laws to the administrative authorities, stating that it had decided to transform the craft union into an industrial union in May 1995 and that although the administrative authorities did not reply to the trade union on this matter, the Government registered the board of management in the same month; however, this registration was subsequently annulled at the request of the Ministry of Public Health and Social Welfare. Furthermore, the Committee notes that the Government did not indicate the way in which the trade union failed to comply with the provisions under the Labour Code to transform itself into an industrial union (in this respect, the Government clearly notes that the members of the board of management had different occupations and functions -- as in the case of industrial unions -- although within the health sector). In this context, the Committee reminds the Government that "workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union" [see Digest of Decisions and Principles of the Freedom of Association Committee, 4th edition, 1996, para. 279] and that "freedom of association implies the right of workers and employers to elect their representatives in full freedom" [see Digest, op. cit., para. 350].

269. In these circumstances, the Committee urges the Government to take steps to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial union and to register immediately once again the board of management which was duly elected. The Committee requests the Government to respect the principles mentioned in the paragraph above and to keep it informed in this respect.

270. As regards the allegations concerning the transfer of the Secretary-General, the First Disputes Secretary and other trade union officials from their posts -- the complainant organization submitted copies of the transfer orders -- and the threats to workers that they would be dismissed if they did not resign from the union, the Committee regrets to note that the Government did not submit its observations. In this respect, the Committee draws the Government's attention to the fact that "one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions" and that "no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment" [see Digest, op. cit., paras. 724 and 696]. Given the Government's failure to reply to these allegations and in spite of repeated requests, the Committee urges the Government to take measures to reinstate in their original posts the trade union officials who were transferred and ensure that no worker is threatened with being dismissed if he or she does not resign from the trade union in question. The Committee requests the Government to keep it informed in this respect.

271. Finally, concerning the allegation that vigilantes and the national police made a violent search of the trade union premises, the Committee also regrets to note that the Government failed to submit any observations on this matter. The Committee stresses that "the entry by police or military forces into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities" [see Digest, op. cit., para. 176]. The Committee therefore requests the Government to take steps to ensure that in future no searches of trade union premises are carried out without a judicial warrant.

The Committee's recommendations

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

The Committee requests the Government to take the necessary steps to amend the legislation so that public officials, including hospital staff, might enjoy the rights of establishing organizations and freely belonging to these organizations. The Committee urges the Government to take the necessary measures to bring the legislation into conformity with the principles of freedom of association and to keep it informed on any measures it adopts in this respect and reminds it that the ILO's technical assistance is at its disposal.
The Committee urges the Government to take steps to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial trade union and to register immediately once again the board of management that was elected. The Committee requests the Government to keep it informed in this respect.
Stressing 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 and that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, the Committee urges the Government to take steps to reinstate in their original posts the trade union officials who were transferred from the Rosales Hospital and ensure that no worker is threatened with dismissal if he or she does not resign from the General Industrial Trade Union of Health Workers (SIGESAL). The Committee requests the Government to keep it informed in this respect.
Recalling that the entry by police or military forces into trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities, the Committee requests the Government to take steps to ensure that in future no searches of trade union premises are carried out without a judicial warrant.

Case No. 1815

Definitive report

Complaint against the Government of Spain

presented by

the Confederation of Independent Trade Unions and
Trade Union Confederation of Civil Servants (CSI-CSIF)

Allegations: Favourable treatment of two trade union
organizations in the collective bargaining process

273. The complaint is contained in a communication from the Confederation of Independent Trade Unions and Trade Union Confederation of Civil Servants (CSI-CSIF) dated 7 December 1994. The Government supplied its observations in communications dated 8 May 1995 and 1 October 1996.

274. At its November 1995 meeting, the Committee decided to transmit the Government's reply to the complainant organization for comment. The Committee requested the complainant organization to transmit, without delay, the observations and information requested [see 300th Report of the Committee, para. 6, approved by the Governing Body at its 264th Session (November 1995)]. The complainant organization sent its comments in a communication dated 28 December 1995, and the Government (which changed after the last parliamentary elections) sent new observations in a communication dated 1 October 1996.

275. Spain has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

276. In its communications of 7 December 1994 and 28 December 1995, the Confederation of Independent Trade Unions and Trade Union Confederation of Civil Servants (CSI-CSIF) alleges that the Autonomous Community of Madrid, and more specifically its Economic and Finance Minister agreed with the Workers' Commissions (CC.OO) and the General Union of Workers (UGT) to set up collective bargaining committees to examine certain aspects of the "collective agreement and purely civil servant matters and the funding of posts", amongst other matters, for civil servants and workers providing their services in the Autonomous Community of Madrid. The complainant points out that it is the most representative civil service trade union and the representative worker trade union within the Autonomous Community of Madrid and for this reason criticizes the underhand agreement to set up the above-mentioned bargaining committees, avoiding the participation of the CSI-CSIF, and the lack of any specific convocation for this purpose and concealment of the bargaining committee set up between the administration and the CC.OO and UGT. The complainant points out that it was not informed of the negotiations at the worker and civil servant levels except through trade union notes from the CC.OO and the UGT published on 8 November 1994 which state that the bargaining committees were set up on 28 September 1994.

277. The CSI-CSIF sent a copy of a UGT document dated 22 December 1994 in which it sends its local organizations "the pre-agreement signed today, 22 December 1994, with the administration of the Autonomous Community of Madrid, the General Union of Workers and the Workers' Commissions". This pre-agreement was not signed by the CSI-CSIF, and if this organization had been convened, it would have placed on record the fact that it had not signed the agreement in question. It is suspicious, to say the least, that the CSI-CSIF was convened to the negotiations on 23 and 27 December 1994. In fact, the Autonomous Community of Madrid was bargaining behind the organization's back, as it had not been convened, and when the pre-agreements had been signed by the UGT and CC.OO, the Autonomous Community of Madrid brought them before the general bargaining committee with the intention of having them approved by the CSI-CSIF.

278. Lastly, the CSI-CSIF points out that it has withdrawn the appeal it had lodged on the facts contained in the complaint in order to avoid adverse effects for the workers employed in the Autonomous Community of Madrid, since it had requested in its appeal that the application of the agreements in question be suspended, in particular as regards wages. None the less, the CSI-CSIF states that it maintains its complaint to the Committee on Freedom of Association.

B. The Government's reply

279. In its communications of 8 May 1995 and 1 October 1996, the Government states that the allegations made by the complainant organization in no way reflect the reality of the situation. Although it is true that the general bargaining committees for both civil servant staff and workers in the Autonomous Community of Madrid were set up on 28 September 1994, according to appended documents, and as indicated by the CC.OO and UGT trade unions in their information notes, what is absolutely incorrect is that the CSI-CSIF was not aware of these negotiations and was not convened to the negotiations. In fact, in a communication from the Director-General of the Civil Service, dated 26 September 1994 (which the Government encloses), this trade union federation was convened to participate in both the initiation of the collective bargaining for civil servant staff and in setting up the bargaining committee for the collective agreement applicable to workers.

280. The Government adds that if the CSI-CSIF had in any way been sidelined from the establishment of the above-mentioned bargaining committees (which the previous paragraph shows is absolutely not the case), or from any subsequent stage in the bargaining process, then it is difficult to understand the meaning of the communication which the President of the CSIT (which acts in the Autonomous Community of Madrid in representation of the CSI-CSIF), Mr. José Montero Regueira, delivered the day after the general bargaining committee for civil servant staff was set up, i.e. 29 September 1994, to the Director-General of the Civil Service, which textually states that "now that the general bargaining committee for civil service staff in the Autonomous Community of Madrid for 1994 has been set up, I am enclosing a proposal by the CSIT concerning the allocation of economic funds for which provision is made in Chapter 1 of the budget of the Autonomous Community of Madrid for 1994, under the heading Provision for technical adjustments", Chapter 1 (the Government encloses a copy of this document).

281. The Government adds that throughout the bargaining process the CSIT made various proposals on the matters being negotiated. In the same way, this trade union, along with two others which make up the general bargaining committee of the civil service staff, was once again convened on 3 October 1994 to a further meeting of the general bargaining committee (the Government encloses the corresponding documents).

282. The Government states that from the above-mentioned documentary evidence, it can be concluded with absolute clarity that the CSI-CSIF was accorded equal treatment on a par with that given to other participating trade unions both in the setting up of the bargaining committees and in the subsequent bargaining process. A different matter is the fact that the scant proposals made by this trade union were not incorporated by the above-mentioned bargaining committees into the final agreements which were also signed by the CSI-CSIF.

283. In its communication of 1 October 1996, the new Government emphasizes that the comments presented on 28 December 1995 by the complainant repeat for a large part what it had stated in its initial communication; as a result, the former Government's observations apply to these comments also. As regards the statement of the CSI-CSIF to the effect that the agreements were adopted on 22 December 1994 (that is, before this union was convened to negotiations on 23 and 27 December of the same year), the Government emphasizes that the agreements were concluded on 27 December 1994 and were signed by this organization as well, as is clear from the documents sent by the Economic and Finance Ministry of the Autonomous Community of Madrid (the agreements referred to were attached to the Government's reply).

C. The Committee's conclusions

284. The Committee observes that in this case the CSI-CSIF alleges: (1) that a decision to set up bargaining committees on some aspects of a collective agreement and the funding of workplaces which concerned civil servants and workers in the Autonomous Community of Madrid was taken between the trade unions UGT and CC.OO and the Economic and Finance Minister of this Autonomous Community, which excluded the complainant organization; (2) that it was not informed of negotiations by the bargaining committees (set up in September 1994) until November 1995; and (3) that the (pre-)agreements were signed by the UGT and CC.OO before the complainant organization was convened.

285. The Committee observes that the Government sends documentation which proves that the Director-General of the Civil Service convened the complainant organization on 26 September 1994 to participate in collective bargaining for civil service staff and the establishment of the bargaining committee of the collective agreement for workers. The Committee also observes that the Government encloses specific proposals made by the complainant organization (dated 29 September 1994) on the matter of the "allocation of economic resources", within the framework of the general bargaining committee. Similarly, the Government encloses documents which show that the complainant organization was once again convened on 3 October 1994 to the general bargaining committee. The Committee observes that the complainant organization has not commented on any of these points, despite having been invited to do so by the Committee.

286. The Committee concludes that, as the Government points out, the complainant organization was convened to participate both in the setting up of the bargaining committees and in the subsequent bargaining process.

287. Lastly, the Committee notes that the complainant organization has withdrawn the appeal it had lodged before the Spanish jurisdictional authorities and observes that the final agreement was dated 27 December 1994 and was also signed by the complainant organization.

The Committee's recommendation

288. 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. 1858

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

Complaint against the Government of France/French Polynesia

presented by

the International Union of Food, Agricultural,
Hotels, Restaurant, Catering, Tobacco and
Allied Workers' Associations (IUF)

Allegations: Arrests and repression of trade unionists

289. In a communication dated 11 October 1995, the International Union of Food, Agricultural, Hotels, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) submitted a complaint of violations of trade union rights against the Government of France/French Polynesia. The IUF supplied additional information in a communication of 24 October 1995.

290. The Government sent its observations in a communication dated 23 May 1996.

291. France 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). These two Conventions were declared applicable, without modification, to French Polynesia.

A. The complainant's allegations

292. In its complaint of 11 October 1995, the IUF explains that its affiliate organization in Tahiti, A Tia I Mua, called a general strike on 6 September 1995. On that day, disturbances were witnessed at Tahiti-Faaa airport and in the city of Papeete. The IUF affiliate organization denies any responsibility for these disturbances.

293. The complainant adds that, on Saturday 9 September, a sizeable gendarme detachment in combat gear as well as armed anti-riot police burst into the A Tia I Mua confederation's main office in Papeete, where the trade union's senior officials were preparing to hold a press conference on the events having taken place on 6 September. The General Secretary, Hirohiti Tefaarere, together with 15 members of the confederation, including eight members of the executive secretariat, were subjected to violent questioning and arrests.

294. The further information supplied indicates that several trade union leaders (including Hirohiti Tefaarere), present at the headquarters of A Tia I Mua, were kicked and punched whilst on the trade union's premises. A representative of the Post Office and Telecommunications Union, Henri Temaititahio, reportedly sustained a truncheon blow on his left temple and lost consciousness. Subsequently, the detainees, including Cyril Lagayic, General Secretary of the Independent Trade Unions of Polynesia (CSIP), were handcuffed and packed, faces to the floor, into a military truck and driven to a police barracks.

295. The IUF states that, upon arrival at the barracks, the detained trade unionists were forced, in humiliating conditions, to kneel handcuffed with their hands behind their backs, faces to the ground. Henri Temaititahio was apparently released on the same evening, but collapsed upon leaving the police barracks. According to the IUF report, he was driven to the territorial hospital on 11 September in a serious condition, with the left side of his body suffering from progressive paralysis. Five detainees, including Cyril Lagayic, were released after police questioning. The others were brought before an investigating magistrate. The public prosecutor stated that they were liable to prison sentences of 20 years. Three trade unionists have reportedly been released on bail and eight others, including Hirohiti Tefaarere, questioned and held at the Nuutania prison.

296. In its communication dated 24 October 1995, the IUF states that, on 23 October, six persons were still being detained at the Nuutania prison. These were Hirohiti Tefaarere, General Secretary, Ronald Terorotua, Irving Paro, both Deputy General Secretaries, Albert Tematahotoa, CEGELEC (hotel service) representative, Henri Temaititahio, deputy (post office) representative of A Tia I Mua and Emile Teuahau, SMPP/SOGEBA (construction) member. The IUF reports that they had been maltreated and had lodged an official complaint with the Papeete court. More specifically, the IUF indicates that Henri Temaititahio was hospitalized from 11 to 20 September and, again, from 2 to 16 October, the date upon which he was imprisoned. On 11 September he was admitted to the emergency ward of Mamao hospital after consulting his private medical practitioner, given that the right side of his body was suffering from progressive paralysis resulting from violent blows to his head and neck. By 23 October, he was no longer in a state of paralysis, but he wears a surgical collar and still suffers from loss of memory. The IUF adds that, on 12 September, three anti-riot police vans proceeded to the home of Henri Temaititahio and entered his house before the legally appointed hour, in the presence of his wife and four children.

B. The Government's reply

297. In its letter dated 23 May 1996, the Government explains that the A Tia I Mua trade union called a general strike to be held on 6 September 1995. The action took the form of an occupation of the Tahiti Faaa international airport's runway and, subsequently, of acts of violence against the police on duty there, damage to aircraft awaiting departure and acts of arson.

298. A judicial inquiry was opened with a view to investigating these incidents. The investigating magistrate in charge of the case issued a summons and committal order on the following grounds: disruption of air traffic; wilful damage to air traffic buildings and installations as well as to an aircraft at the airport; armed or unarmed assault upon police officers, resulting in their being temporarily unfit for work for periods of less than, or exceeding, one week; destruction by incendiary device, or other collective act of arson, of property and buildings belonging to third parties; theft, including by breaking and entering; failure to render assistance to persons in danger; failure to prevent bodily assault; damage to public buildings by collective arson. These acts are addressed by, and punishable under, articles L.282-1 and L.282-4 of the Civil Aviation Code as well as articles 309, 434, 435, 379, 381, 382, 63 subparagraphs 1 and 2, 257 and 257-3 of the Penal Code.

299. Hence, the Government states that certain persons belonging to the A Tia I Mua trade union were charged and remanded in custody at the Nuutania prison pursuant to a judicial order issued in respect of common law offences.

300. With reference to the alleged acts of police violence committed in connection with the arrests of the persons concerned, the Government reports that the investigating magistrate in charge of the case has opened an inquiry, the conclusions of which are as yet unknown. In the Government's view, there appears, to date, to be no substantiation of this allegation. The Government adds that, whilst in police custody, the persons concerned underwent a physical examination which revealed nothing unusual.

301. On 12 December 1995, the Papeete Court of Criminal Appeal decided to release the persons who had been remanded in custody since 10 September 1995, including Mr. Hirohito Tefaarere who had been placed under court supervision, deprived of the right to leave French Polynesia and forbidden to make any public statement regarding the reasons for his detention.

302. Finally, the Government states that free expression and opinion have always been respected in French Polynesia. The Government will continue to guarantee these rights both during the forthcoming general elections to the territorial assembly and also in all other circumstances.

303. In an appendix to its communication, the Government adds various documents, including press cuttings reporting on the essentially political motives (halting of the nuclear tests) behind the general strike and the violence committed on 6 September 1995; they also include police statements categorically denying allegations of torture and maltreatment inflicted upon trade unionists.

C. The Committee's conclusions

304. The Committee observes that this case concerns various measures taken by the authorities in response to violent clashes which occurred during a one-day general strike organized by the A Tia I Mua trade union. The complainant reports that the police burst into the trade union's main office, arrested, questioned and imprisoned trade union leaders and maltreated the trade unionists in the course of questioning.

305. In its justification of these measures, the Government speaks of acts of violence, committed during the strike, both against public and private property, in particular at Tahiti international airport as well as against police officers. In its reply, it also supplied documents to suggest that the general strike was called for essentially political motives, i.e. as a protest at the resumption of French nuclear testing.

306. It is incumbent on the Committee to determine, in accordance with its principles and practice, whether, in particular, the measures or action taken by the authorities were occasioned either by trade union activities or, conversely, by activities outside the trade union sphere and which were either prejudicial to public order or political in nature [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 115].

307. In examining the documents at its disposal, the Committee has noted that A Tia I Mua mentioned the nuclear testing issue in its call for a general strike. Nevertheless, other claims were also made, including an increase in the minimum wage and a reduction in the health insurance scheme deficit. Hence, this general strike appears to have been called both for motives pertaining to a more strictly political rather than trade union sphere as well as for other objectives which, however, are part of the regular activities of a workers' organization.

308. In any event, the demonstration held at the international airport and the resulting violence prompted the authorities to take various measures. Thus, the police entered the A Tia I Mua trade union's premises and proceeded to question the trade union leaders gathered there. In this respect, the Committee recalls that the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so [see Digest, op. cit., para. 175].

309. The Committee notes in this case that, in the documents supplied by the Government, reference is made to a statement by the colonel in command of the gendarmerie unit of French Polynesia to the effect that the questioning conducted on 9 September of trade unionists took place "as part of the inquiry instituted by court order, following the rioting of 6 and 7 September". Moreover, "the arrests were conducted by officers of the criminal investigation department and under judicial supervision in accordance with the security procedures laid down by the relevant regulations". In its reply, the Government also mentions the issue of a summons by the investigating magistrate in charge of the case. It therefore appears that the action conducted by the police on the trade union's premises took place by court order as part of the inquiry into the incidents that occurred during the general strike.

310. The complainant made reference to mistreatment and acts of violence committed by the police during the questioning of trade unionists. The Committee notes that the police, via their commanding officer, categorically denied these allegations and state that, whilst in custody, the persons in question underwent a physical examination which revealed nothing unusual.

311. The Committee expresses concern at the serious allegations of mistreatment of trade unionists and recalls that in alleged cases of mistreatment or in the event of assaults on the physical or moral integrity of individuals, it has considered that a judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 53]. In this case, the Committee notes that the investigating magistrate in charge of the case opened an inquiry, the conclusions of which are not as yet known. Given the importance of a climate untainted by violence, pressure or threats of all kinds for the free exercise of trade union rights, as well as the contradictory information contained in the statements by the complainant and the Government on the truthfulness of these allegations, the Committee requests the Government to keep it informed of the inquiry's results.

312. Finally, the complainant organization alleged that the authorities arrested, questioned and imprisoned several trade union leaders. These measures were confirmed by the Government. The Committee notes that the Government listed the grounds for the arrests and legal action. All of these grounds are connected with acts of violence committed in the course of the demonstration. In this respect, the Committee observes that the complainant organization itself does not deny this violence inasmuch as it makes reference to disturbances, for which it claims the trade union bore no responsibility.

313. In these circumstances, the Committee believes that the authorities were justified in instituting a judicial inquiry into the incidents connected with the general strike and that it was legitimate for the leaders of the trade union organizing the strike to be questioned in the course of this inquiry. Furthermore, the Committee takes note of the fact that some of these leaders were brought before an investigating magistrate and remanded in custody. They were subsequently released by court decision, although the General Secretary of the trade union was placed under judicial supervision and deprived of the right to leave French Polynesia. It therefore appears to the Committee that the said trade union leaders, after being held for questioning, were granted all the guarantees of due process in the course of an inquiry justified by acts which went beyond the bounds of normal, legitimate trade union activities.

The Committee's recommendation

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

The Committee requests the Government to keep it informed of the results of the judicial inquiry being conducted into the alleged acts of violence inflicted upon trade unionists held for questioning.

Case No. 1876

Interim report

Complaint against the Government of Guatemala

presented by

the International Confederation of Free Trade Unions (ICFTU)

Allegations: Kidnappings and threats against trade union members

315. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions, dated 3 April 1996. The complainant organization later sent additional information in a communication dated 29 May 1996. The Government sent its observations in communications dated 9 May and 13 September 1996.

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

A. The complainant's allegations

317. In its communications of 3 April and 29 May 1996, the International Confederation of Free Trade Unions (ICFTU) alleges that the following human rights violations against trade union members or their relatives have occurred:

kidnapping of Mr. Salvador Archila Miranda, a farm worker at "Los Cerros", on 31 March 1996; his whereabouts are still unknown;
kidnapping of Ms. Vilma Cristina González in February 1996 by four armed men for a period of four hours during which she was assaulted, tortured and sedated. She was warned that she must leave the country along with her brother (Secretary-General of the Trade Union Federation of Banking Employees) and that if they did not do so they would be killed;
death threats against members of the Trade Union Federation of Banking Employees; the Secretary-General, Ms. Verónica Vázquez, was warned that if she did not provide the information requested on members of the Federation she may be attacked;
new death threats against Débora Guzmán Chupén in February 1996 (the complainant encloses the written transcript of such a threat); both she and her family have been forced to go into hiding;
kidnapping of the son of Mr. Rolando Yoc, leader of the National Assembly of Public Health Workers, in February 1996;
persecution of Mr. Víctor Hugo Durán, Secretary-General of the Union of Telecommunications Enterprise Union of Guatemala;
threats against and intimidation of Mr. Féliz Hernández, Mr. Jorge Galindo and Mr. Danilo Aguilar, leaders of the National Federation of Public Servants;
death threats against Mr. Juan Francisco Alfaro Mijangos, Secretary-General of the Confederation of United Trade Unions of Guatemala (CUSG).

On 17 April 1996, the Guatemalan news programme Notisiete broadcast information (in its evening edition) showing Mr. Alfaro to be the instigator and organizer of certain events occurring at the "El Tablero" farm, in which several people regrettably lost their lives and others were injured. Immediately the false information had been broadcast, Mr. Alfaro began to receive death threats by telephone, which therefore endangered his life and personal and psychological well-being, given the climate of defencelessness and insecurity prevailing in Guatemala. At a press conference Mr. Alfaro, in his capacity as CUSG Secretary-General, publicly denounced the facts of the case and requested support from the national and international community for the agricultural workers concerned, whose only demand was their inalienable right to work. The CUSG publicly denied that it had participated in the conflict which occurred at the "El Tablero" farm, not because it received support (in this case the human and labour rights of the workers involved in the conflict were also violated), but because the relevant information was distorted so as to hamper the efforts being devoted to a genuine struggle undertaken by CUSG.

B. The Government's reply

318. In its communications of 9 May and 13 September 1996, the Government states that Ms. Débora Guzmán Chupén reported the new threats on 19 February 1996; the report was received by the Justice of the Peace and forwarded to the Public Prosecutor's Office. Officials of the Presidential Coordinating Committee on Executive Human Rights Policy (COPREDEH) visited the National Police station at Amatitlán in order to verify whether the security measures to protect the person concerned were being implemented. The director of the Public Order Office explained that the patrols around Ms. Guzmán Chupén's house have continued. A visit was also made to the factory "L and L Fashions" in the town of Amatitlán with the aim of interviewing the person concerned who, although said to be on the premises, was actually on leave granted to her on 20 February 1996 but which expired on the same day. Officials from COPREDEH visited Ms. Guzmán Chupén's place of residence, but they were told that for security reasons she was outside the town of Amatitlán and her whereabouts were unknown. On 20 March 1996, COPREDEH sent official letters to the Director-General of the National Police and to the Public Prosecutor's Office, instructing their respective specialized bodies to speed up the investigation into establishing the origin of the threats; similarly, a meeting is planned between the person concerned and the corresponding state institutions to devise strategies to ensure the safety of Ms. Guzmán Chupén and other people who have been threatened. The Government points out that as long ago as March 1995 the authorities offered special security measures to protect Ms. Guzmán Chupén.

319. As regards the kidnapping of Edwin Rolando Yoc Acajabón, the son of Mr. Rolando Yoc, a member of the Trade Union Assembly of Health Workers, the Government states that officials from COPREDEH met leaders from the Great Trade Union Alliance (GAS) who said that they were aware of the events in Sacatepéquez which had been publicly denounced. They said that at 10 p.m. on 21 February 1996, when they were returning from a family gathering and were close to home, their eldest son, Edwin Rolando Yoc Acajabón, who was behind them, was kidnapped by two unknown men 10 metres from the house, located in 12th Street, No. 1-42 in the district of Los Llanos in Jocotenango. The men forced him into a black Sentra vehicle, pushed him on to the floor of the vehicle and set off, apparently in the direction of the premises of the Cindal enterprise; they placed a pistol against his forehead and proceeded to inform him that they would tell his father, Mr. Rolando Yoc, what had happened and that he should stop interfering in matters which did not concern him, otherwise he would regret it. After being held for a period of three hours he was released; he was unable to recognize the individuals who had kidnapped him owing to the way in which he was positioned inside the vehicle. No report was made to the authorities responsible for investigating the events which took place, owing to the emotional state of their son, since he was very upset and disturbed by what had happened; for this reason, he decided to inform the Great Trade Union Alliance about what had happened. Officials from the Human Rights Prosecutor's Office invited GAS to report the events to the respective authorities, which it later did. Similarly, Mr. Yoc informed them that he had regularly received death threats by telephone in which he was urged not to report the events which had occurred in the public health sector; it was made clear that between the time when his son was kidnapped and the present neither he nor his family had been persecuted. As regards his son's kidnapping, he will consider with his family the possibility of making a formal report to the respective authorities, depending on the state of his son's mental health. Mr. Yoc also pointed out that the kidnapping could have occurred as a result of the fact that on 19 February 1996 he met the Minister for Public Health for discussions, during which he made it clear to the Minister that the workers disagreed with the health policy currently being implemented. The meeting was tense and lasted four hours; however, he does not wish to accuse anyone in particular, since it may also be the case that a third party, interested in causing damage and fostering a climate of instability in the country, was involved.

320. As regards the kidnapping for three hours and 45 minutes and the physical and psychological torture to which Ms. Vilma Cristina González was subjected on 28 February 1996, the Government points out that during her kidnapping, in which four individuals participated, she was interrogated about the activities of her brother, Reynaldo Federico González, concerning his links with the Guatemalan National Revolutionary Union; she was told that her brother, Reynaldo Federico González, should abandon his activities as leader of the Trade Union Federation of Banking and Insurance Employees, and that her whole family should leave the country, otherwise they would be killed. The Government adds that the Ministry of the Interior took the necessary measures to protect the lives and physical well-being of those concerned. The personal security offered by the corresponding authorities was rejected by the person concerned, since she was offered security only around the place where she lived. The Justice of the Peace and the Public Prosecutor's Office were informed of the kidnapping of Ms. Vilma Cristina González. Arrangements were made by the Public Prosecutor's Office for the person concerned to appear in court to make a statement relating to the events which she had reported. Mr. Reynaldo Federico González and his sister Ms. Vilma Cristina González left the country for security reasons. Mr. Reynaldo Federico González returned to the country in order to meet the corresponding authorities to discover what progress had been made in the investigation. The Public Prosecutor stated that they met Mr. González on 25 June 1996. Investigations into the case by the Public Prosecutor's Office are continuing.

321. The Government states that the Great Trade Union Alliance (GAS) denounced, via the media, the alleged persecution to which the trade union leader Mr. Víctor Hugo Durán was subjected, and which occurred because Mr. Durán had denounced the telephone tapping conducted in the Guatemalan Telecommunications Enterprise (GUATEL). Officials from COPREDEH held talks with the secretary responsible for disputes in the Federation of Public Servants' Trade Unions concerning the threats made against Mr. Victor Hugo Durán. The secretary responsible for disputes stated that Mr. Durán in fact received death threats by telephone for having denounced acts of corruption in the GUATEL Telecommunications Enterprise. However, for his own personal safety and that of his family he had not reported them to the respective authorities. COPREDEH proceeded to request information on the case from the Public Prosecutor's Office and the National Police Department.

C. The Committee's conclusions

322. The Committee observes that the allegations in this case refer to the kidnapping and intimidation of, or death threats against, a significant number of trade union leaders or members of their families. The Committee would like first of all to express its profound regret at the kidnappings and death threats and wishes to point out that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed" and that "the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected" [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 46 and 47].

323. The Committee takes note of the judicial investigations undertaken and the security measures offered by the authorities to Ms. Débora Guzmán Chupén and to Ms. Vilma Cristina González as a result of the new death threats which they have received and the four-hour kidnapping of Ms. Guzmán; it observes that Ms. Vilma Cristina González left the country for security reasons. The Committee also takes note of the fact that the trade union leader Mr. Victor Hugo Durán did not report the death threats he received to the authorities for security reasons and that, for the same reason, neither did the trade union leader Mr. Rolando Yoc report the kidnapping of his son Edwin Rolando Yoc for a period of three hours, despite the authorities' invitation for him to do so.

324. The Committee wishes to emphasize that "in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts"; similarly, observing that in the cases of kidnapping or death threats to which the Government refers, a report has not been made, or if it has the guilty parties have not been found, the Committee emphasizes that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest, op. cit., paras. 53 and 55]. Consequently, the Committee requests the authorities to initiate investigations into the death threats against the trade union leader Mr. Victor Hugo Durán and the kidnapping of Mr. Edwin Rolando Yoc, and to inform it of the progress made in the investigations concerning the death threats against Ms. Débora Guzmán Chupén and Ms. Vilma Cristina González and the kidnapping of Ms. González for a period of four hours.

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

the kidnapping of Mr. Salvador Archila Miranda, a farm worker at "Los Cerros", on 31 March 1996, whose whereabouts are still unknown;
the death threats against members of the Trade Union Federation of Banking Employees; in particular, a warning has been issued to Ms. Verónica Vázquez, Secretary-General, that if she does not provide the information requested concerning members of the Federation, she may be attacked;
the threats against and intimidation of Mr. Féliz Hernández, Mr. Jorge Galindo and Mr. Danilo Aguilar, leaders of the National Federation of Public Servants; and
the death threats against Mr. Juan Francisco Alfaro Mijangos, Secretary-General of the Confederation of United Trade Unions of Guatemala (CUSG).

The Committee's recommendations

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

Expressing its profound regret at the kidnapping of and death threats against a significant number of trade union leaders or members of their families, the Committee emphasizes that "the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected".
The Committee requests the authorities to initiate investigations into the death threats against the trade union leader Mr. Victor Hugo Durán and the kidnapping of Mr. Edwin Rolando Yoc, and to inform it of the progress made in the investigations concerning the death threats against Ms. Débora Guzmán Chupén and Ms. Vilma Cristina González, as well as the kidnapping of Ms. González for a period of four hours. The Committee emphasizes that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights.
Finally, while encouraged by the improved cooperation on the part of the Government, the Committee regrets that the Government has not sent its observations concerning the other allegations and urges it to forward them without delay; more specifically concerning:

the kidnapping of Mr. Salvador Archila Miranda, a farm worker at "Los Cerros", on 31 March 1996, whose whereabouts are still unknown; - the death threats against members of the Trade Union Federation of Banking Employees; in particular, a warning has been issued to Ms. Verónica Vázquez, Secretary-General, that if she does not provide the information requested concerning members of the Federation, she may be attacked;
the threats against and intimidation of Mr. Féliz Hernández, Mr. Jorge Galindo and Mr. Danilo Aguilar, leaders of the National Federation of Public Servants; and
the death threats against Mr. Juan Francisco Alfaro Mijangos, Secretary-General of the Confederation of United Trade Unions of Guatemala (CUSG).

Case No. 1773

Interim report

Complaint against the Government of Indonesia

presented by

-- the International Confederation of Free Trade Unions (ICFTU)
-- the World Confederation of Labour (WCL) and
-- the Serikat Buruh Sejahtersa (SBSI)

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

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

328. The International Confederation of Free Trade Unions (ICFTU) provided additional information in communications dated 6 and 8 August 1996. The World Confederation of Labour (WCL) did the same in communications dated 5 and 22 August 1996.

329. The Serikat Buruh Sejahtersa (SBSI) lodged a new complaint by a communication dated 11 June 1996. The Trade Unions International of Workers of the Building, Wood and Building Material Industries expressed its support for the complaint in a communication dated 14 August 1996.

330. The Government subsequently sent its observations in communications dated 30 August and 5 September 1996.

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

A. Previous examination of the case

332. In its previous examinations of the case, the Committee dealt with very serious allegations of violations of trade union rights in Indonesia related to the denial of the workers' right to establish organizations of their own choosing, the persistent interference by government authorities, the military and employers in trade union activities, and the ongoing restrictions on collective bargaining and strike action. The case also raised serious allegations concerning the arrest and harassment of trade union leaders as well as the disappearance and assassination of workers and unionists.

333. At the occasion of its previous examinations, the Committee deeply deplored and re-emphasized the seriousness of the allegations which led it to believe that the general situation of workers in Indonesia had not evolved but was still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice. The Committee therefore insisted on the fact that a genuinely free and independent trade union movement can only develop where fundamental human rights are fully respected and guaranteed and that a system of democracy is fundamental for free exercise of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 34 and 35].

334. At its March 1996 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

The Committee urges the Government to take all the necessary measures in law and in practice to ensure that the right of workers to organize is fully recognized and to keep it informed in this respect.
The Committee urges the Government to take all the necessary measures to ensure that the SBSI be duly registered without delay and to keep it informed in this regard. It also requests the Government to indicate if there are any registered organizations which are affiliated to the SBSI.
Considering that the requirement according to which a trade union is obliged to obtain the recommendation of the SPSI in order to secure registration is contrary to freedom of association, the Committee urges the Government to eliminate such impediments (such as section 2(c) of the Ministerial Regulation No. Per-03/MEN/1993) and to keep it informed in this respect.
As regards Mr. Arieshia, whose case appears to be still pending before the Supreme Court, the Committee hopes that the Government will take the necessary measures for his release if it appears that he is detained for activities connected with the legitimate exercise of trade union rights and to keep it informed in this respect.
The Committee urges the Government to initiate an independent inquiry in order to clearly establish the reasons of Mr. Mulyono's dismissal and if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to give him the option of being reinstated in his post without delay and to keep it informed in this respect.
The Committee also requests the Government to provide information on the allegation of acts of anti-union discrimination against any workers of the Southern Cross Textile Company found to be members of the SBSI.
The Committee urges the Government to provide, without delay, information on: (i) all the workers and trade union leaders arrested, detained or convicted in connection with the Medan events and; (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee urges the Government to take all the necessary measures, without delay, to re-establish any of those workers, who have been found to be discriminated against because of trade union activities, in her/his rights and to keep it informed in this respect.
The Committee requests the Government to confirm that Mr. Muchtar Pakpahan was acquitted by the Supreme Court and that all legal proceedings against him have been dropped.
The Committee requests the Government to keep it informed of the results of the police investigation in the case of the death of Ms. Marsinah.

B. The complainants' further allegations

335. In its communication dated 11 June 1996, the SBSI reports several acts of anti-union discrimination and interference by public authorities against the SBSI and its members, including allegations of physical violence.

336. More specifically, in the course of the month of May 1996, Mr. Aryanto, a member of the SBSI Medan Branch and a worker at PT Sarimorawa Tanjung Morawa Deli Serdang, was allegedly beaten in the company's office by an officer of Tanjung Morawa troop. Furthermore, the SBSI adds that on 1 June 1996 the district government and security officers vandalized the SBSI's union sign for Medan and Binjai Branches. On that same day, seven members of the SBSI Lampung Branch who worked for the PT Tris Delata Agrindo, were forced to quit their SBSI membership. A day later, the SBSI reports that Mr. Arsipto Parangin-Angin, a worker at the transportation company called Mayasari Bakti and new SBSI member, was arrested and detained by the Ciracas local police. On 2 June 1996, Mr. Rozali worker at Mayasari Bakti and member of the SBSI, was reported to have been beaten by a Cilandak Marine officer. Finally, the SBSI adds that Mr. Farid Mu'adz, Chairman of the SBSI West Jakarta Branch, was arrested, his arrest being grounded on a circular letter he prepared which describes the workers' right to strike.

337. In their communications, the ICFTU and the WCL provided information on the arrest of the general Chairman of the SBSI, Mr. Muchtar Pakpahan, which occurred on 30 July 1996. It appears from the complainants' communications that late in the night (11.00 p.m.) of 30 July 1996, Mr. Pakpahan was arrested at his home and summoned by the Junior Supreme Prosecutor for interrogation on six alleged charges, including being the mastermind behind the anti-regime protests held on 27 July 1996. The complainants express their great concern with regard to the psychological and physical health of Mr. Pakpahan who, for several years, has been subject to detention, intimidation and harassment by public authorities in violation of internationally established ILO Conventions for human and trade union rights.

338. Subsequently on 2 August 1996, Mr. Pakpahan was charged by Indonesian authorities with subversion in connection with the July riots. According to the complainants, the anti-subversion Act outlaws anyone who is "disseminating feelings of hostility or arousing dissension, conflict, disorder, disturbance or anxiety" or "disturbing industry, production, distribution, commerce or transport" and carries a maximum penalty of death. Suspects can be held indefinitely without being tried.

339. In addition to Mr. Pakpahan, the complainants report that nine officers and members of the SBSI's Riau branch (North West Sumatra) were being detained in early August 1996 for interrogation. They were accused for having illegally been assembling without police permission. In fact, a total of 30 SBSI trade unionists was reportedly being held in various parts of Indonesia. SBSI officers were interrogated and released by the police and the military in the following offices: Serang, Pedang, Malang, Mojokerto and Ujung Padang. The WCL adds that some activists were detained while others were searched by the police: Rekson Silaban, Director of research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution. All of them have been accused of being masterminds behind the recent riots.

340. The ICFTU adds that prior to the arrest the SBSI had appealed to the Indonesian Government not to take advantage of the political protests to detain public figures who are critical of the regime in place. The SBSI urged that the authorities should make an objective evaluation of the reasons why the riots occurred. For its part, the SBSI concluded that these events were a popular explosion which erupted because law and justice had been sacrificed and replaced by repression. The SBSI leaders requested constructive dialogue rather than show of force from the military.

341. Finally, the complainants insist on the fact that the arrest of Mr. Pakpahan and other SBSI members are violations of the most basic principles of freedom of association and that the Indonesian Government is still searching for the destruction of the SBSI as a legal instrument of the Indonesian workers to defend their legal, social and economic rights.

C. The Government's further reply

Application in practice of Ministerial Regulation No. 1
of 1994 and registration of the SBSI (302nd Report,
paragraphs 479(a)(b)(c))

342. In this respect, the Government states that labour laws and regulations ensure freedom of association. The Indonesian workers are able to establish their own organization without any requirement to affiliate to a specific trade union. The Government evaluates that there exists now more than 1,000 independent trade unions at the company level. A newly established union is required only to file before the Ministry of Manpower information with regard to its organization, status and the member of its executives. It can then after perform its function and negotiate with employers, inter alia, on the drafting of collective agreements.

343. Even if a close relationship has been established between the Government on the one hand and the workers' and employers' organizations on the other through their own programmes and activities, the Government pleads that time is needed to make the employers and workers aware of their individual obligations within the implementation of a new system of industrial relations.

Situation prevailing at the Southern Cross
Textile Company (302nd Report, paragraph 479(f))

344. The Government restates that, in 1993, the PT Southern Cross Textile Industry (SCTI) in Jakarta employed 1,500 employees and that since 1974 the SPSI has been established in that company. At the beginning of April 1993, negotiations were held between the SPSI and the employer for a yearly wage increase to be paid on 30 May 1993. At that time, the third CLA was entering its second year. While the negotiations were in process, on 19 April 1993, between 2 p.m. and 6 p.m., a group of workers forced the others to strike for a wage increase. In order to avoid any misconduct and destructive actions, the Government reiterates that the employer and the SPSI agreed to hold negotiations outside the company premises. Beginning on the evening of 22 April 1993 and until the next day at 11:30 a.m., the Government reports that a group of workers closed the company gates preventing the other workers to go to work. As a result of this situation, the management of the company fired 16 workers.

April 1994 events in Medan; arrests, trials and
detention of workers (302nd Report, paragraph 479(g))

345. As regards the April 1994 events in Medan, the Government considers that these riots had been planned long in advance. The persons behind these illegal acts had been prosecuted and sentenced pursuant to laws and regulation in force by independent and impartial tribunals.

346. Furthermore, except for Mr. Mohammed Ali and Mr. Mulyadi, the Government provides information with regard to all workers and trade union leaders allegedly arrested, detained or convicted in connection with these events the names of whom and place of detention were listed in Annex B of the second interim report of the Committee. All were sued for inciting workers to riot and sentenced to three to six months term of imprisonment. They all have completed their punishment [see Annex 1].

Information on Mr. Ariesha (302nd Report, paragraph 479(d))

347. The Government indicates that he was charged with inciting workers to stage demonstrations which degenerated into riots. The State Court of Medan sentenced him to one year in jail while the State High Court of Medan gave an additional sentence of two years. He appealed to the Supreme Court.

Information on Mr. Mulyono (302nd Report, paragraph 479(e))

348. The Government recalls that Mr. Mulyono was fired on 6 May 1994, on the grounds that he could not get along with his supervisor and that he frequently created unrest through his influence on other workers. The Government adds that a conciliator from the Ministry of Manpower tried to settle the case in a peaceful manner by inviting the parties to discuss. Since the conciliator's proposals were not accepted by the company, it was suggested that it lodge an appeal against such termination of employment before the Regional Committee for Disputes Settlement. On 28 September, the Committee decided to authorize the company to terminate Mr. Mulyono's employment with effect from 19 September 1994. Based on the agreement reached between the parties, Mr. Mulyono accepted the amount of Rs.400,000 in compensation which had to be paid by the company at the latest on 26 September 1994.

Information on Mr. Muchtar Pakpahan (302nd Report,
paragraph 479(h) and complainants' additional information)

349. The Government recalls that Mr. Pakpahan was brought before the court because of his involvement in the April 1994 riots. The State Court of Medan sentenced him to a three-year term of imprisonment while the High Court of Medan, on appeal, added a year. Mr. Pakpahan appealed to the Supreme Court. On 29 September 1995, the Court released him without any requirement. In its communication of 30 August 1996, the Government insists on the fact that the new charge brought against Mr. Pakpahan is in no way related to his trade union activities and that he has committed criminal offences punishable pursuant to Act No. 11/PNPS/1963 on subversive activities, article 1(3).

Mrs. Marsinah's police investigation (302nd Report,
pargraph 479(i))

350. With regard to Mrs. Marsinah's death, the Government indicates that this homicide still remains unresolved. While further analyses are being made, the Government indicates that it has sent a team to reinvestigate the case and try to identify the guilty party.

Information on the arrest of Messrs. Arsipto Parangun-Angin,
Rozali, Farid Mu'adz, Aryanto and the PT Tris Delata
Agrindo (complainants' additional information)

351. With respect to Mr. Arsipto Parangun-Angin, the Government specifies that the company for which he works, the PT Mayasari Bakti, employs 4,000 workers. Trade unions are established at plant level and have concluded collective labour agreements. It appears that on 2 June 1996, Mr. Arsipto Parangun-Angin was effectively arrested by Ciracas Police for having kept obligatory deposit amounting to Rs.160,000. Because of its criminal nature, this act was reported to the police. On the request of Mr. Arsipto Parangun-Angin's family, the case has been peacefully settled. He has been released from detention.

352. Concerning Mr. Rozali's case, the Government indicates that, according to information it gathered, on 4 June 1996 Mr. Rozali had a personal quarrel with a member of the company's security. He is still working for the company.

353. With regard to Mr. Farid Mu'adz, the Government indicates that on 6 June 1996, Mr. Farid Mu'adz was interrogated by military apparatus (military district Commando/Kodim) for having disseminated a provocative pamphlet to workers on the right to strike.

354. Concerning the alleged beating of Mr. Aryanto, the Government specifies that the company for which he works employs 330 workers and produces paper for the purpose of religious activities. On 24 May 1996, Mr. Aryanto and his colleagues were involved in a dispute with local community members which degenerated into a mass fight. A local man was stabbed by one of Mr. Aryanto's friends. As a result, Mr. Aryanto was attacked and the local police had to intervene.

355. Finally concerning the case of the PT Tris Delata Agrindo, a company which employs 839 workers, the Government alleges that, on 29 August 1994, the SPSI was established as a trade union in the company and that on 16 January 1996 a CLA was signed. On 16 May 1996, workers of the company reported the establishment of a trade union affiliated to the SBSI. After a meeting held on 17 May 1996, between representatives of the employer, the SBSI, the SPSI and a number of workers of the company, it was agreed to have only one trade union at plant level. On 18 May, those who were involved in the establishment of the SBSI voluntarily agreed to resign as members of this trade union. Neither force nor pressure were exercised by the authorities or the employer. These workers are still working at the company.

D. The Committee's conclusions

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

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

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

359. The Committee notes also with deep concern that the Government has not provided information on serious allegations of anti-union measures directed against, inter alia, the Serikat Buruh Sejahtersa (SBSI), its Chairman, Mr. Muchtar Pakpahan and other SBSI officers.

360. Turning to the first matter of concern raised by the Committee in its previous interim examinations of the case and which regards the legislative impediments preventing workers from establishing organizations of their own choosing (see 302nd Report, paragraph 479(a)(c)), the Committee deplores that, except for the number of independent trade unions established at the company level reported by the Government, it does not provide any further information in this respect.

361. The Committee feels therefore bound to recall its opinion according to which the Indonesian trade union registration system at the national level comprises requirements that are so stringent as to constitute a major limitation to freedom of association since very few trade unions can see their establishment legally recognized (for instance, the regulation provided that a labour union can be registered if it has at least 100 units (work centres) at plant level, 25 organizations at the district level and five organizations at the provincial level, or, alternatively 10,000 members throughout Indonesia). The Committee recalls that these legal impediments negate the right of workers to establish organizations of their own choosing and are, therefore, in clear violation of one of the most basic principles of freedom of association.

362. Furthermore, the Committee wishes to recall that the legal requirement according to which an Indonesian trade union is obliged to obtain the recommendation of the Serikat Pekerja Seluruh Indonesia (SPSI) in order to be legally recognized constitutes an obstacle to the free establishment of organizations and is, therefore, contrary to freedom of association. The Committee once again urges the Government to eliminate such impediments (such as section 2(c) of Ministerial Regulation No. Per-03/Men/1993) so as to ensure that the right of workers to organize is fully recognized in law and in practice and to keep it informed in this respect.

363. With regard to the specific case of the SBSI, the Committee deplores that the Government has not specified the measures taken in order for this trade union to be legally registered nor has it indicated how many first level organizations are affiliated to the SBSI. The Committee understands that the SBSI still meets all the requirements for registration except for the recommendation of the SPSI. The Committee therefore insists once again on the fact that any government's position favouring a specific organization, through law or practice, constitutes an act of anti-union discrimination and is contrary to principles of freedom of association. The Committee therefore urges again the Government to take all the necessary measures to ensure that the SBSI be registered without delay and to keep it informed in this respect.

364. With regard to Mr. Ariesha's imprisonment (302nd Report, paragraph 479(d)), to Mr. Mulyono's inquiry (302nd Report, paragraph 479(e)) as well as to the alleged acts of anti-union discrimination against workers of the Southern Cross Textile company found to be members of the SBSI (302nd Report, paragraph 479(f)), the Committee regrets that the Government simply repeats information already provided. The Committee recalls that Mr. Ariesha was imprisoned following the April 1994 events in Medan and that Mr. Mulyono was dismissed on vague grounds also more than two years ago. The Committee therefore urges the Government: (a) to take without delay the necessary measures for Mr. Ariesha's immediate release if it appears that he is detained for activities connected with the legitimate exercise of trade union rights; and (b) to initiate an independent inquiry in order to clearly establish the reasons of Mr. Mulyono's dismissal and, if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to grant him the option of being reinstated in his post without delay. The Committee requests the Government to keep it informed in this respect. Finally, concerning the Southern Cross Textile Company, the Committee recalls that the company memo according to which action would be taken against any worker in the company found to be a member of the SBSI or openly or covertly organizing for the SBSI was circulated four years ago (23 November 1992). The Committee once again feels obliged to recall that Convention No. 98, ratified by Indonesia, provides that particular protection must be given to workers against dismissal or other prejudices by reason of union membership. The Committee therefore urges the Government to provide information without delay on the allegation of acts of anti-union discrimination against any workers of the Southern Cross Textile Company found to be members of the SBSI and to keep it informed in this respect.

365. The Committee takes note of the information provided by the Government with regard to the workers and trade union leaders allegedly arrested, detained or convicted in connection with the April 1994 events in Medan. The Committee notes that, except for the cases of Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu) for whom the Government has not provided any information, all the workers and trade union leaders were convicted for inciting workers to riot and were sentenced to three to six months of imprisonment. While taking note that they seem to have all completed their punishment, the Committee wishes to recall that allegations of criminal conduct should not be used to harass trade unionists by reason of their membership or activities and that the sentencing of trade unionists to long periods of imprisonment, very often on "disturbance of public order" or similar general grounds, makes it possible to repress activities of a trade union nature (see Digest, 4th edition, paras. 43 and 64). In addition, the Committee deplores that the Government does not provide information on Messrs. Icang's and Suryandi's trials whose arrests were allegedly related to the spring 1994 events in Medan. They were accused of having illegally gathered people without the appropriate permit. The Committee urges the Government to provide without delay information on: (i) the outcome of Messrs. Icang's and Suryandi's trials; and (ii) Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan. The Committee requests the Government to keep it informed in this regard.

366. While taking note with regret that the circumstances of Mrs. Marsinah's death have not been clarified, the Committee wishes to recall that the absence of judgement against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [Digest, 4th edition, para. 55]. The Committee once again requests the Government to keep it informed of the results of the police investigation with regard to Mrs. Marsinah's homicide and to take the necessary measures to bring the perpetrators to justice.

367. With regard to the alleged infringements of freedom of association reported by the SBSI in its communication dated 11 June 1996, the Committee notes the great discrepancies between the complainant's and the Government's versions. On the one hand, the complainant alleges serious anti-union measures including harassment, physical violence and arrest. On the other hand, the Government affirms that, inter alia, most of these events were peacefully settled and that, while recognizing that arrests occurred, they were justified by pending criminal charges. In order to pronounce itself on the matter in full knowledge of all the facts, the Committee therefore requests the complainants to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for Medan and Binjai Branches.

368. With regard to the specific situation of the Chairman of the SBSI, who was arrested on 30 July 1996, the Committee is gravely concerned by the serious and persistent nature of these allegations. Recalling that the Supreme Court in December 1995 overturned a lower court sentence against Mr. Pakpahan on the charge of inciting mass labour unrest in Medan in April 1994, the Committee understands that on 2 August 1996, Mr. Pakpahan was charged with subversion in connection with riots which occurred in July 1996 in Jakarta. The Committee was also informed that Indonesian authorities extended Mr. Pakpahan's warrant of arrest allowing officials to hold him at least until 28 September 1996. The Committee must express its deepest concern since such a subversion charge carries a maximum penalty of death. Furthermore, the Committee notes with concern that the subversion charge that has recently been brought against Mr. Pakpahan relates to the same type of activity for which he was previously imprisoned, tried and finally released without any requirement by the Supreme Court in September 1995. The Committee believes that there exists a strong presumption, which the Government has not reversed, to the effect that under the cover of allegations of subversive activities, the charges brought against and the measures taken against Mr. Pakpahan are linked to his trade union activities. In addition, the Committee notes with concern that even though Mr. Pakpahan has not yet been tried by a court with all the safeguards of a normal judicial procedure, the Government already considers that he has committed criminal offences. The Committee stresses the importance which should be attached to the principle that any trade unionist who is arrested should be presumed innocent until proven guilty after a public trial during which he or she enjoys all the guarantees necessary for his or her defence. The Committee therefore urges the Government to take without delay the necessary measures for Mr. Pakpahan's release, to drop the criminal charges related to the July 1996 events in Jakarta and to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities. The Committee requests the Government to keep it informed in this respect.

369. Furthermore, the Committee also deplores that the Government has not provided information with regard to the alleged anti-union measures against SBSI officers following the July 1996 events, including arrest, detention and interrogation by the police or the military. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the Committee wishes to recall, in cases involving the arrest, detention or sentencing of trade union officials, that individuals have the right to be presumed innocent until found guilty. In the present case, the Government has failed to show that the measures it had taken were in no way occasioned by trade union activities of the individuals concerned. The Committee must therefore insist on the fact that the harassment, arrest or detention of trade union leaders for activities connected with the exercise of trade union rights are contrary to the principles of freedom of association. It urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including the arrest, interrogation and charges brought against them. The Committee request the Government to keep it informed.

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

E. The Committee's recommendations

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

Recalling that Indonesian legislation comprises requirements that are so stringent as to constitute a major limitation to freedom of association, the Committee once again urges the Government to eliminate such impediments (such as section 2(c) of Ministerial Regulation No. Per-03/Men/1993) so as to ensure that the right of workers to organize is fully recognized in law and in practice and to keep it informed in this respect.
With regard to the specific case of the SBSI, the Committee urges again the Government to take all the necessary measures to ensure that it be registered without delay and to keep it informed in this respect.
The Committee urges the Government: (i) to take without delay the necessary measures for Mr. Ariesha's immediate release if it appears that he is detained for activities connected with the legitimate exercise of trade union rights; and (ii) to initiate an independent inquiry in order to clearly establish the reasons for Mr. Mulyono's dismissal and if it appears that he was dismissed for legitimate trade union activities to take all the necessary measures to grant him the option of being reinstated in his post without delay. The Committee requests the Government to keep it informed in this respect.
The Committee urges the Government to provide information without delay on the allegation of acts of anti-union discrimination against any workers of the Southern Cross Textile Company found to be members of the SBSI and to keep it informed in this respect.
The Committee urges the Government to provide without delay information on: (i) the outcome of Messrs. Icang's and Suryandi's trials; and (ii) Messrs. Mahammad Ali, 19 (PT Peridoni) and Mulyadi, 24 (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan. The Committee requests the Government to keep it informed in this regard.
The Committee once again requests the Government to keep it informed of the results of the police investigation with regard to Mrs. Marsinah's homicide and to take the necessary measures to bring the perpetrators to justice.
In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the complainants' to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.
Believing that there exists a strong presumption, which the Government has not reversed, to the effect that under the cover of allegations of subversive activities, the charges brought against and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee urges the Government to take without delay the necessary measures for Mr. Pakpahan's release, to drop the criminal charges related to the July 1996 events and to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities. The Committee requests the Government to keep it informed in this respect.
Insisting on the fact that the harassment, arrest or detention of trade union leaders for activities connected with the exercise of trade union rights are contrary to the principles of freedom of association, the Committee urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including the arrest, interrogation and charges brought against them. The Committee requests the Government to keep it informed.
The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation with the application of Convention No. 98.

Annex 1

1. Mr. Nobel Samosir, 22 -- worker at the PD. Romas. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

2. Ms. Nurlela Manalu, 24 -- Worker at the PT Unibis. Sued for inciting workers to riot (civil action). Sentenced to three months and 15 days in jail. Has completed her punishment.

3. Mr. Poniman, 20 -- worker at PT Musi. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

4. Mr. Rianto, 25 -- worker at PT Unibis. Sued for inciting workers to riot (civil action). Sentenced to three months and 15 days in jail. Has completed his punishment.

5. Mr. Ridwan, 22 -- worker at PT Unibis. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

6. Mr. Ridwan, 42 -- worker at PT Goldon. Sued for inciting workers to riot (civil action). Sentenced to three months in jail. Has completed his punishment.

7. Mr. Robert Sitompul, 21 -- worker at PT Prindoni. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

8. Mr. Sudiaman Zega -- worker at PT Lariza. Sued for inciting workers to riot (civil action). Sentenced to five months in jail. Has completed his punishment.

9. Mr. Sugiono, 24 -- worker at PT Perindoni. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

10. Mr. Suyatno, 23 -- construction worker. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

11. Mr. Syahril, 28 -- bus conductor. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

12. Mr. Syamsudin Lubis, 22 -- worker at PT Goldon. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

13. Mr. Syamsul Bahri, 18 -- worker at Auto Shop. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

14. Mr. Tehnik Menalu, 21 -- unemployed. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

15. Mr. Usahanta Ginting, 22 -- worker at PT Ganda Seribu Utama. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

16. Mr. Zulkifil Sipahutar, 30 -- worker at PT Growth Asia. Sued for inciting workers to riot (civil action). Has completed his punishment.

17. Mr. Arifin, 18 -- Worker at PT Ganda Seribu Utama. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

18. Mr. Arozidu Zega -- worker at PT Lariza. Sued for inciting workers to riot (civil action). Has completed his punishment.

19. Mr. Budiman Sahri -- worker at PT Peridoni. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

20. Mr. Effendi Tarigan -- worker at PT Growth Sumatra. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

21. Ms. Hanafiah, 21 -- worker at PT Ganda Seribu Utama. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed her punishment.

22. Mr. Irawadi, 24 -- worker at PT Growth Asia. Sued for inciting workers to riot (civil action). Sentenced to six months in jail. Has completed his punishment.

23. Mr. Jafar Jiddik, 26 -- worker at PT Iron. Sued for inciting workers to riot (civil action). Sentenced to three months in jail. Has completed his punishment.

24. Mr. Jamian Marpaung, 36 -- worker at PT Goldon. Sued for inciting workers to riot (civil action). Sentenced to three months in jail. Has completed his punishment.

25. Mr. Juman, 17 -- Worker at PT Industri Karet Deli. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

26. Mr. Marzuki Siregar, 29 -- worker at PT Bintang emara Ind. Sued for inciting workers to riot (civil action). Sentenced to three months and 21 days in jail. Has completed his punishment.

27. Mr. Ardin Zega, 25 -- worker at PT Gunung Gahapi Sakti. Sued for inciting workers to riot (civil action). Sentenced to six months in jail. Has completed his punishment.

28. Mr. Andan Parasibu, 26 -- worker at PT Tjipta Rimba Djaja. Sued for inciting workers to riot (civil action). Sentenced to four months in jail. Has completed his punishment.

Case No. 1834

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

Complaint against the Government of Kazakstan

presented by

the Independent Trade Union Centre of Kazakstan (ITUCK)

Allegation: Prohibition on the acceptance, by national trade unions,
of financial assistance from international organizations

372. In a communication dated 23 January 1995, the Independent Trade Union Centre of Kazakstan (ITUCK) submitted a complaint of violations of freedom of association against the Government of Kazakstan. It presented additional information in a communication dated 17 September 1995.

373. In a communication dated 11 September 1996, the Government provided its observations on the complaint.

374. Kazakstan 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

375. In its communication of 23 January 1995, the ITUCK indicates that it has lodged a complaint pursuant to the adoption of the Civil Code of Kazakstan by Parliament. In effect, under the terms of section 106 of the Civil Code, "it is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations".

376. The ITUCK considers the adoption of such a provision to be in violation of workers' rights and of freedom of association since it prevents national trade unions from having free contacts, albeit financial ones, with international workers' organizations. Moreover, the ITUCK points out that it is a recently established confederation of free trade unions which is trying to build up a new democratic trade union movement in Kazakstan. It would be very difficult for it to survive without the assistance and training of trade union organizations from developed countries.

377. In its more recent communication, the ITUCK adds that the Government has incorporated the above provision in the text of the new Constitution (article 5) which was adopted by referendum on 30 August 1995. The ITUCK therefore calls upon the ILO to take the necessary measures to ensure that the Government complies with freedom of association principles.

B. The Government's reply

378. The Government recalls in its communication of 11 September 1996 that article 16 of the Constitution of Kazakstan guarantees the right of association to all citizens of the State in public organizations including trade unions. This provision is reinforced by the Civil Code of the Republic and by the laws on public associations and on trade unions. Furthermore, the Government adds that the mechanism for funding public associations is governed by article 106 of the Civil Code of the Republic. Pursuant to this article, public associations are funded, inter alia, from entrance fees, member dues, voluntary contributions, donations, receipts from lectures, exhibitions, etc. The funding of political parties, public associations and trade unions by foreign persons or States as well as by international organizations is not permitted. This provision is reinforced by article 5 of the Constitution to the same effect. The Government is of the opinion that this prohibition contravenes neither international human rights law nor the provisions of the relevant ILO Conventions and does not limit, in any way, possible cooperation with foreign entities.

C. The Committee's conclusions

379. The Committee observes that the allegation in the present case concerns the prohibition of the right of national trade union organizations in Kazakstan to receive financial assistance from international workers' organizations. The Committee notes that this prohibition is contained in section 106 of the Civil Code of Kazakstan and is reinforced by a newly adopted constitutional provision.

380. In this respect, the Committee reminds the Government that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 632]. The Committee considers that all national organizations of workers and employers should have the right to receive financial assistance from international organizations of workers and employers respectively, whether they are affiliated or not to the latter.

381. In view of the above-mentioned principles, the Committee therefore calls on the Government to take steps to amend section 106 of the Civil Code as well as article 5 of the new Constitution so as to lift the prohibition on the acceptance by national trade unions, including the complainant, and in the meantime, not to obstruct the acceptance, of financial assistance from international organizations of workers. It requests the Government to keep it informed of any progress made in this respect.

The Committee's recommendations

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

The Committee calls upon the Government to take steps to amend section 106 of the Civil Code as well as article 5 of the new Constitution so as to lift the prohibition on the acceptance by national trade union organizations, including the complainant, and in the meantime, not to obstruct the acceptance, of financial assistance from international organizations of workers. It requests the Government to keep it informed of any progress made in this regard.

Annex

Provisions of the Civil Code and of the Constitution
referred to by the complainant

The Civil Code of Kazakstan

Section 106: "It is forbidden for political parties, non-governmental organizations with political goals and trade unions to receive any kind of foreign financial assistance from any foreign countries, foreign organizations, foreign citizens and international organizations."

The Constitution of Kazakstan

Article No. 5

(paragraph No. 4): "Financial assistance to political parties and trade unions from foreign governments, foreign citizens, foreign companies, foreign NGOs, and international organizations is forbidden in the Republic."

Case No. 1883

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

Complaint against the Government of Kenya

presented by

the International Union of Food, Agricultural, Hotel,
Restaurant, Catering, Tobacco and Allied Workers'
Associations (IUF)

Allegation: Denial of union recognition

383. In a communication of 14 May 1996, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Associations (IUF) presented a complaint of violations of freedom of association against the Government of Kenya, on behalf of its affiliate, the Kenya Wildlife and Allied Workers' Union (KWAWU).

384. The Government supplied its observations in a communication dated 17 July 1996.

385. Kenya has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

386. In its communication of 14 May 1996, the IUF contends that the Kenya Wildlife and Allied Workers' Union (KWAWU) continues to be denied recognition by the Registrar of Trade Unions in Kenya.

387. The IUF explains that the above union was registered on 5 August 1994. On 31 March 1995, the Registrar ordered that the union be deregistered. The IUF states that the reasons for this decision remain unclear and were obviously unclear to the High Court when the Court ordered the restoration of registration on 27 July 1995. However, the Registrar apparently chose to ignore this High Court decision.

388. The IUF considers this to be a clear and blatant denial of the workers' right to freedom of association and of their union's right to bargain with the relevant employer. Thus, this action of the Kenyan Government represents an infringement of freedom of association principles and should be rectified.

B. The Government's reply

389. In its communication of 17 July 1996, the Government indicates that the issue of the KWAWU is not, in essence, that of recognition but of registration. Having been initially registered on 5 August 1994, it was subsequently deregistered on 31 March 1995. This was because it came to the notice of the Registrar of Trade Unions that another union was already in existence, namely the Kenya Game Hunting and Safari Workers' Union.

390. Indeed, this anomaly was pointed out to the Registrar by none other than the Central Organization of Trade Unions, the Federation of Kenya Employers and the Ministry of Labour and Manpower Development. Hence, the tripartite social partners actually did identify the duplication.

391. The Government adds that, in any event, upon its deregistration and in accordance with its constitutional right, the aggrieved party took the matter to the High Court of Kenya. The Government stresses that the matter is still in the High Court and has not been determined, contrary to what the complainant claims. According to the Government, the Registrar would never disregard a High Court order to restore the union's registration. The Government concludes by stating that it is awaiting the High Court's decision.

C. The Committee's conclusions

392. The Committee notes that the allegations in this case refer to the deregistration of the Kenya Wildlife and Allied Workers' Union (KWAWU) by the Registrar of Trade Unions on 31 March 1995. In addition, although according to the complainant the High Court ordered that registration be restored to the KWAWU, the Registrar continues to refuse to register it. The Government, for its part, acknowledges that the KWAWU was deregistered, but only because another union -- the Kenya Game Hunting and Safari Workers' Union -- was already in existence. Moreover, it categorically refutes the complainant's statement that the High Court has already handed down a decision ordering the restoration of registration to the KWAWU.

393. The Committee observes that although the Government admits that there was deregistration, this was justified due to the fact that another union already existed for the same employees as those whom the KWAWU was organizing. In this respect, the Committee would remind the Government that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 297].

394. Hence, the subsequent finding by the Registrar of the existence of the Kenya Game Hunting and Safari Workers' Union, which represents the same class of employees as those whom the KWAWU was representing, does not, in the Committee's view, give rise to objections which would justify the deregistration of the KWAWU by the Registrar. The Committee therefore requests the Government to ensure in future that a new union will be registered even if an existing registered union already represents the interests which the union seeking registration proposes to defend.

395. The Committee further observes the contradiction between the complainant's and the Government's statements with respect to the High Court issuing a decision on this matter. Although the complainant asserts that the High Court ordered that registration of the KWAWU be restored in a decision of 27 July 1995, it does not provide a copy of this decision to substantiate its claim. The Government, on the other hand, indicates that it is still awaiting a decision by the High Court on this issue. As a result, the Committee requests the Government to keep it informed of the outcome of the High Court's decision in this matter, as soon as it has been handed down. It would further request the Government to supply it with a copy of the Court's decision.

The Committee's recommendations

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

The Committee requests the Government to ensure in future that a new union will be registered even if an existing registered union already represents the interests which the union seeking registration proposes to defend.
The Committee requests the Government to keep it informed of the High Court's decision in the matter of the restoration of registration to the Kenya Wildlife and Allied Workers' Union, and to provide it with a copy thereof.

Cases Nos. 1687 and 1691

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

Complaint against the Government of Morocco

presented by

-- the Moroccan Labour Union (UMT) and
-- the International Union of Food, Agricultural,
Hotel, Restaurant, Catering, Tobacco and
Allied Workers' Associations (IUF)

Allegations: Anti-union intimidation, arrests and imprisonment
of union officers and activists, ill-treatment of a
trade union officer, suspension of striking workers,
dismissal of trade union officers

397. The Committee examined the substance of these cases on two occasions, most recently at its June 1995 meeting, when it presented an interim report to the Governing Body [see 299th Report, paras. 428-459, approved by the Governing Body at its 263rd Session (June 1995)].

398. Since then, in the absence of reply from the Government, the Committee has had to postpone the examination of this case three times. At its June 1996 Session [see 304th Report, para. 10], the Committee made an urgent appeal to the Government, stating that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of this case at its next meeting, even if the observations or information requested from the Government had not been received in due time. The Government has not sent any observations to date.

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

A. Previous examination of the case

400. At its meeting in June 1995, the Committee noted with concern that the allegations in these cases pertained to infringements of freedom of association in four Moroccan private enterprises: acts of anti-union discrimination against trade union delegates and trade unionists and violence by the police and authorities during strikes.

401. On that occasion, the Committee had deplored the fact that the Government had not replied to the serious allegations of physical assault allegedly suffered by the General Secretary of the UMT trade union of the BISMA enterprise, Mr. Moukhbir Mohammed, during his arrest in connection with a strike. The Committee had urged the Government to provide its observations on these allegations. It had also requested the Government to conduct immediately an independent inquiry into the circumstances surrounding his arrest, in particular with respect to the physical assault which he allegedly suffered, and to keep it informed of the results of this inquiry [see 299th Report, para. 459(d)].

402. The Committee had also noted with regret that the Government had not provided any information as to developments in the situation of workers of the BISMA enterprise who had been arrested. Eleven workers, including three women, were arrested; they also included the Deputy General Secretary of the UMT branch trade union in Sidi Slimane, Mr. Khallaf Saïd, the General Secretary of the UMT trade union in the BISMA enterprise, Mr. Moukhbir Mohammed, and his deputy, Mr. Bouzidi Cherkaoui. The Committee had urged the Government to inform it whether they had been released and reinstated in their jobs [see 299th Report, para. 459(c)].

403. The Committee had also requested the Government to keep it informed of the results of the appeals lodged by the four trade union delegates and trade unionists of the SINET enterprise, and by the seven workers of the FILARSY enterprise in Casablanca. It had expressed the firm hope that if the court were to conclude that these workers had been dismissed as a result of their trade union activities, the Government would take the necessary measures to enable them to be reinstated in their jobs [see 299th Report, para. 459(b)].

B. The Committee's conclusions

404. The Committee expresses its profound concern at the lack of cooperation on the part of the Government and regrets, in particular, that despite the time which has elapsed since the last examination of these complaints, the Government has not responded to repeated requests, including by means of an urgent appeal, to present its comments and observations on these cases.

405. In these circumstances, in accordance with the applicable rule of procedure [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to submit a report on the substance of the case without being able to take into account the information that it had hoped to receive from the Government.

406. The Committee reminds the Government once again that the purpose of the whole procedure instituted by the International Labour Organization to examine alleged violations of freedom of association is to promote respect for this freedom in law and in fact. If the procedure protects governments against unreasonable accusations, governments on their side must recognize the importance of formulating for objective examination detailed factual replies to the allegations made against them. [See the Committee's First Report, approved by the Governing Body in March 1952, para. 31.]

407. The Committee notes with profound concern that the allegations in these cases pertain to numerous infringements of freedom of association, including acts of anti-union intimidation, violence by the police, arrests of strikers and physical assault.

408. The Committee deplores the fact that, as regards the acts of anti-union intimidation and allegations of physical assault suffered by Mr. Moukhbir Mohammed, General Secretary of the UMT trade union of the BISMA enterprise, arrested and ill-treated on the occasion of a 48-hour strike on 26 July 1994 in Sidi Slimane, the Government has not replied to these serious allegations. The Committee once again emphasizes the seriousness of these allegations and recalls that, in such cases, an independent judicial inquiry is the only appropriate method of fully ascertaining the facts, determining responsibilities and punishing those responsible. The Committee requests the Government as a matter of urgency to inform it of the developments in the situation. It firmly requests it to take steps to conduct an independent inquiry into the circumstances surrounding the arrest of Mr. Moukhbir Mohammed, in particular with respect to the physical assault which he allegedly suffered, and urges the Government to inform it of the results of this inquiry.

409. As regards the arrest by the police during strikes at the premises of the branch union of the UMT in Sidi Slimane of 11 workers, including three women, as well as the Deputy General Secretary of the UMT branch trade union in Sidi Slimane, Mr. Khallaf Saïd, the General Secretary of the UMT trade union in the BISMA enterprise, Mr. Moukhbir Mohammed, and his deputy, Mr. Bouzidi Cherkaoui, the Committee notes with regret that the Government has not sent any information on developments in the situation of these workers. The Committee notes with concern that these arrests occurred over two years ago and once again emphasizes the principle that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 475]. The Committee is also of the opinion that the authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association [see Digest, op. cit., para. 601]. In view of the importance of these principles and of the time which has elapsed, the Committee again urges the Government to inform it without delay of the situation of these workers, indicating, inter alia, whether they have been released and reinstated in their jobs.

410. The Committee profoundly regrets the fact that the Government has not transmitted any information on the results of inquiries it had requested the Government to carry out concerning the dismissals of trade union officers in the SINET and FILARSY enterprises in Casablanca or any information on the appeals lodged by these workers. The Committee had requested the Government to hold an independent inquiry to determine the actual reasons for the dismissals on 2 November 1992 of Mr. Bouna Houcine, General Secretary of the UMT enterprise trade union, Mr. Mouzoune Hassan, Deputy General Secretary, and Mr. Attor Ahmed and Mr. Lachgar Brahim, trade union delegates at the SINET enterprise, as well as that of seven members of the UMT trade union executive at the FILARSY enterprise on 22 September 1992. The Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association and dismissal of workers because of a legitimate strike constitutes discrimination in employment. [See Digest, op. cit., 1996, paras. 702 and 704.] These trade unionists having brought the case before the courts, the Committee had noted that the Government would keep it informed of the results of the appeals lodged. It trusts that, if the court concluded that these workers had been dismissed as a result of their trade union activities, the Government has already taken the necessary measures to enable them to be reinstated in their jobs.

411. Noting that the Government has not provided its observations in several cases recently examined, the Committee deems it necessary, in order to re-establish a climate of cooperation with the Moroccan Government, to request the Director-General to take appropriate measures including through a direct contacts mission if necessary.

The Committee's recommendations

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

The Committee profoundly regrets that, despite the time which has elapsed since the last examination of these complaints, the Government has not replied to the questions addressed to it, although it has been invited repeatedly, including by means of an urgent appeal, to present its comments and observations on these cases. It reminds the Government once again that the whole purpose of the procedure instituted by the International Labour Organization to examine alleged violations of freedom of association is to promote respect for this freedom in law and in fact, and that if the procedure protects governments against unreasonable accusations, governments on their side must recognize the importance of formulating detailed replies to the allegations made against them.
As regards police intervention during strikes, recalling that the authorities should resort to the use of force only in situations where law and order is seriously threatened, the Committee requests the Government to undertake independent, impartial and in-depth inquiries to determine the nature of the police action and responsibilities and to keep it informed of the results.
As regards the arrest and physical assault allegedly suffered by Mr. Moukhbir Mohammed, General Secretary of the UMT trade union of the BISMA enterprise, the Committee recalls that, in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee once again urges the Government to conduct immediately an impartial and independent inquiry to clarify the facts, determine responsibility and punish those responsible, and to inform it of the results of such inquiries, as a matter of urgency.
As regards the situation of trade union officers and trade unionists, some of whom were named by the complainant organizations (inter alia, 11 workers, including three women, as well as the Deputy General Secretary of the UMT branch trade union in Sidi Slimane, Mr. Khallaf Saïd, the General Secretary of the UMT trade union in the BISMA enterprise, Mr. Moukhbir Mohammed, and his deputy, Mr. Bouzidi Cherkaoui), the Committee again requests the Government to conduct impartial and independent inquiries, inter alia into the circumstances surrounding their arrests, and to keep it informed of the results of these inquiries.
The Committee once again requests the Government to provide information on the appeals lodged by four trade union delegates of the SINET enterprise (Messrs. Bouna Houcine, Mouzoune Hassan, Attor Ahmed and Lachgar Brahim) and by the seven trade unionists of the FILARSY enterprise, and to keep it informed of the judgements handed down in these cases, as the Government had committed itself to doing. It trusts that, if the court has concluded that these workers had been dismissed as a result of their trade union activities, the Government has already taken the necessary measures to enable them to be reinstated in their jobs.
The Committee requests the Director-General to take appropriate measures in order to re-establish a climate of cooperation with the Government, including through a direct contacts mission if necessary.

Case No. 1855

Interim report

Complaints against the Government of Peru

presented by

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

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

413. The complaints which are the subject of this case appear in communications from the Federation of Banking Employees of Peru (FEB), dated 29 September 1995, the Unitary Union of Education Workers of Peru (SUTEP), of 5 October 1995 and the Unified National Federation of Health Sector Workers (FENUTSSA), dated 15 November 1995.

414. The Government sent its observations in communications dated 24 January and 30 April 1996.

415. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). However, it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

416. In its communication of 29 September 1995, the Federation of Banking Employees of Peru (FEB) alleges that in the resolution of 20 September 1995 the Ministry of Labour and Social Promotion has denied it the right to bargain collectively by impeding all mechanisms for bargaining or understanding with the employers concerned. Such a denial is based on the fact that the Ministry of Labour and the various banking institutions do not believe that the FEB has complete proof of the absolute majority required by section 46 of Legislative Decree No. 25593 necessary for the conclusion of a collective agreement in a particular branch of activity.

417. In this connection, the FEB points out that the criterion of absolute majority, i.e. the 50 per cent plus one in question, is not applicable to its case, since it is the only trade union organization which represents banking employees at national level and is duly recognized by the Labour Authority; for this reason, the various banking institutions have not as yet objected to it being represented, since it has signed two collective agreements and Legislative Decree No. 25593 is already in force.

418. The FEB adds that as a consequence of the policy of labour deregulation policy which the current Government continues to apply, in accordance with Law No. 26513 on employment promotion, in particular workers who are trade union members are subject to violations of their rights and threats of dismissal. More specifically, in the Banco de Crédito of Peru, in which the FEB had several hundred members, the numbers have been reduced to a few trade union leaders over whom hang threats of dismissal. The complainant points out that the above details are explained by the fact that a large number of workers have ceased to become FEB members through fear of being dismissed. A similar policy is applied in the Interbanc, where in a single week 60 workers have given up their FEB membership en masse.

419. Finally, the FEB alleges that whereas employers demand an absolute majority from the Labour Authority in order to be able to bargain collectively, on the one hand they inform workers who are trade union members that if they do not give up their membership they will not enjoy the economic benefits to be obtained by non-union members, and also threaten to declare them surplus to requirements and consequently to dismiss them. Secondly, they offer lucrative incentives to senior managers so that they hinder the FEB in its work.

420. In a communication dated 5 October 1995, the Unitary Union of Education Workers of Peru (SUTEP) alleges that in the context of its labour flexibility and deregulation policy, since 1991 the Government has not followed up the petitions presented by SUTEP to the Ministry for Education, in accordance with section 17 of Supreme Decree No. 026-82 on the Right to Organize and Collective Bargaining of Public Servants.

421. Similarly, SUTEP alleges that the Government, through the Ministry for Education and its decentralized bodies, has denied the right to payment of salary for its trade union leaders, in violation of subsection 16(e) on the Law of the Teaching Profession of Peru, as well as ILO Convention No. 135.

422. In its communication of 15 November 1995, the Unified National Federation of Health Sector Workers (FENUTSSA) alleges that pursuant to Legislative Decree No. 26093 the National Health Institute (INS) has launched a process to evaluate the performance of its staff, which has resulted in the dismissal of 66 workers including all the members of the Governing Body of the Unified Union of National Health Institute Workers, 47 of its members and a national leader of FENUTSSA.

B. The Government's reply

423. As regards the allegations made by the Federation of Banking Employees of Peru (FEB), in its communication of 24 January 1996 the Government states that in May 1995 FEB sent to the Ministry of Labour and Social Promotion a draft collective agreement through which banking enterprises could be informed of the start of collective bargaining in a particular branch of activity. After receiving notification, most banking entities opposed the move towards such bargaining, arguing that FEB lacked the legitimacy to bargain within a particular branch of activity, since such an organization did not represent an absolute majority of workers in that sector, as required by section 46 of Legislative Decree No. 25593.

424. The Government adds that given the circumstances the Ministry of Labour first of all requested FEB to specify the total number of workers included in its sphere, as well as the number of members in each place of work; however, in response FEB said that it did not have the required information available. The Ministry of Labour later requested the information in question from the banking institutions which, in response, sent the approved information on the number of workers affected by the discount on trade union dues in their capacity as FEB members. Given the circumstance, the matter was resolved by the Administrative Labour Authority which stated that the opposition of the banking entities to collective bargaining, taking into account the fact that FEB did not represent the absolute majority of workers in the sector as required by law, was justified.

425. As regards the allegations made by FENUTSSA concerning anti-union dismissals, in its communication of 30 April 1996 the Government states that on the basis of Legislative Decree No. 26093 relating to the half-yearly appraisal of public sector staff, the National Health Institute approved the Regulation concerning the half-yearly programme of assessment of the work performance of employees of the Institute in question. Section 10 of the above Regulation provides that workers who do not attend the appraisal on the dates scheduled, or the appraisal for those who failed to attend the first time, will be made redundant. The Government specifies that the aim of the Decree in question is to assess the capacity for work of employees without distinction, irrespective of whether or not they are members of a trade union organization. On 1 September 1995, the National Health Institute laid off 66 of its workers who had failed to attend the appraisal. Finally, the Government points out that FENUTSSA lodged an appeal on the grounds of unconstitutionality to Specialized Civil Court No. 24 which is still being considered.

C. The Committee's conclusions

426. The Committee observes that the complaints in this case refer to restrictions on the right to bargain collectively, acts of discrimination and interference in union activities, anti-union dismissals and the refusal of authorization for trade union leaders.

427. As regards the allegations made by the Federation of Banking Employees of Peru (FEB) concerning restrictions on collective bargaining, the Committee notes that in accordance with the Government's statement, the Administrative Labour Authority declared that the opposition of the banking entities to collective bargaining, given that FEB did not represent an absolute majority of workers in the sector as required by section 46 of Legislative Decree No. 25593, was justified. In this connection, the Committee observes that a decision had already been taken on the section in question [see 291st Report, Cases Nos. 1648 and 1650, Peru, para. 460] and that comments on it had already been made by the Committee of Experts on the Application of Conventions and Recommendations.

428. In fact, as regards section 46 which stipulates that a prerequisite for the conclusion of a collective agreement on the branch or occupational level shall be a majority both in terms of the number of workers and of enterprises, the Committee informed the Government that the legislation should promote voluntary collective bargaining between employers' and workers' organizations at all levels in accordance with Article 4 of Convention No. 98. Both the Committee and the Committee of Experts have requested the Government, in consultation with the social partners, to take measures to modify the legislation in the light of the foregoing considerations. The Committee reiterates this view and urges the Government once again to take the necessary measures in this respect.

429. As regards the allegations made by the FEB concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who were not trade union members (a situation which has led a large number of workers to give up their FEB membership), the Committee regrets to observe that the Government has not responded to such allegations, for which reason it requests that the Government forward its observations on the matter without delay.

430. As regards the allegations made by FENUTSSA concerning anti-union dismissals, the Committee notes that in accordance with the information provided by the Government, the National Health Institute declared that 66 of its workers had been laid off since they had not attended the appraisal provided for in Legislative Decree No. 26093, and in accordance with the relevant Regulations; it also notes that FENUTSSA lodged an appeal on the grounds of unconstitutionality to a Specialized Court which is still being considered. In this connection, the Committee regrets to note that the Government has not investigated the possible anti-union nature of such measures, especially if account is taken of the fact that, as indicated by the complainant (an allegation not denied by the Government), the 66 workers dismissed include all the members of the Governing Body of the Unified Union of National Health Institute Workers, 47 of its members and one of its national leaders. Moreover, the Committee regrets to observe that the union privileges to which trade union leaders are entitled in accordance with sections 30 and 31 of Legislative Decree No. 25593 have not been respected.

431. The Committee requests the Government to keep it informed of the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA and to take measures so that those dismissed for trade union reasons be reinstated in their posts and ensure that any economic prejudice suffered is redressed. As it did in a similar case, the Committee also requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination [see Case No. 1796, Peru, 304th Report, para. 458].

432. The Committee also regrets to note that the Government has not replied to the allegations made by the Unitary Union of Education Workers of Peru (SUTEP), relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its trade union leaders. The Committee requests the Government to forward its observations on the matter without delay.

The Committee's recommendations

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

As regards the allegations concerning restrictions on collective bargaining, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, once again urges the Government to take, in consultation with the social partners, measures to modify the legislation so as to promote voluntary collective bargaining at all levels between employers' and workers' organizations in accordance with Article 4 of Convention No. 98.
As regards the allegations concerning the threats of dismissal and pressure placed on employees of the Banco de Crédito of Peru and Interbanc who are union members (a situation which has led a large number of workers to give up their FEB membership), the Committee requests the Government to forward its observations on the matter without delay.
As regards the allegations concerning anti-union dismissals of trade union leaders and members of the National Health Institute, the Committee requests the Government to keep it informed of the outcome of the appeal lodged on the grounds of unconstitutionality by FENUTSSA and to take measures so that those dismissed for trade union reasons be reinstated in their posts and ensure that any economic prejudice suffered is redressed. As it did in a similar case, the Committee also requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination [see Case No. 1796, Peru, 304th Report, para. 458].
As regards the allegations made by SUTEP, relating to the Ministry of Education's refusal to respond to its petitions, as well as to the refusal of union authorization for its leaders, the Committee regrets to note that the Government has not replied and requests the Government to forward its observations on the matter without delay.

Case No. 1857

Definitive report

Complaint against the Government of Chad

presented by

the Trade Union Confederation of Chad (CST)

Allegations: discrimination against a trade union organization

434. The complaint of the Trade Union Confederation of Chad (CST) against the Government of Chad is contained in a communication dated 30 September 1995. The CST sent additional information in a communication dated 26 November 1995. As the Government did not reply, the Committee had to postpone its examination of this case on two occasions. At its June 1996 meeting [see 304th Report, para. 10], the Committee made an urgent appeal to the Government, stating that, in accordance with the procedural rule set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, even if the observations or information requested from the Government have not been received in due time. The Government has not sent any observations to date.

435. Chad 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. Allegations of the complainant organization

436. In its communication of 30 September 1995, the Trade Union Confederation of Chad (CST) states that the Government discriminates against it and excludes it by preventing it from participating in collective bargaining and sitting on national bodies.

437. Specifically, the CST makes the following allegations:

the Ministry of the Public Service and Labour never sent the CST copies of information and reports transmitted to the Director-General of the ILO on the application of ratified Conventions. This attitude consists in preventing the CST from monitoring the action taken by the Government to implement ratified Conventions;
the CST has never been consulted by the Ministry of the Public Service and Labour as it should be in order to appoint representatives to sit on the High Committee for Labour and Social Welfare. In this respect, the Ministry of the Public Service and Labour, in a letter dated 19 January 1995, ref. No. 017/MFPT/DG/DT/94, in reply to a letter of protest from the CST, stated that the latter is not representative and that "there are no criteria enabling it to determine the CST's representativity";
the CST has also been excluded from the labour and social welfare courts and has never been consulted by the Ministry of the Public Service and Labour to appoint representatives to sit as assessors in court, as prescribed by law;
the Ministry of the Public Service and Labour merely renewed the term of office of the members of the board of directors of the national social insurance fund, with the aim of preventing the CST from sitting on the board as a member;
the Ministry of the Public Service and Labour debarred the CST from participating in the meeting of the joint committee held on 23 February 1995 to negotiate new wage scales;
in a letter dated 16 January 1995, ref. No. 005/PCST/95, the CST brought the case of Chadian workers employed by diplomatic missions, international non-governmental organizations and organizations of the United Nations system accredited in the Republic of Chad. These employers prohibit their local employees from joining a trade union of their choice, and from participating in any trade union meetings or activities, even outside working hours, on pain of being dismissed. The CST requested the Ministry to examine the matter, which it views as an infringement of freedom of association and the right to organize. The Ministry has not replied to this request;
as the CST is a legal and recognized workers' organization, the fact that it is excluded and barred from participation in collective bargaining and sitting on economic and social decision-making bodies constitutes a flagrant violation of trade union rights.

438. In its communication of 26 November 1995, the CST states that after the complaint had been presented, the Labour Directorate had transmitted to it, in a letter dated 6 November 1995, ref. No. 128, copies of the reports on Conventions ratified by Chad for the period 31 July 1994 to 30 June 1995, which the CST had requested in a letter dated 7 September 1994, ref. No. 080/PCST/94.

439. On 23 November 1995, the Labour Directorate invited the CST to participate in a meeting on 24 November to hear a statement by the Ministry of the Public Service and Labour concerning the situation with regard to the census of public servants imposed on the Government by the World Bank and the International Monetary Fund, and to give workers' organizations an opportunity to state their views. The CST attended the meeting and expressed its point of view.

440. In addition, in a letter dated 20 October 1995, ref. No. 143, the General Directorate of the Ministry of the Public Service and Labour requested the CST to appoint three of its representatives to participate in a seminar on the draft new labour code, organized by the Ministry in cooperation with the International Labour Office, which was planned for November 1995 but had to be postponed. No new date has been set. If the seminar were to take place, the CST would propose substantive amendments to sections which are not in conformity with the international ILO Conventions ratified by Chad. The CST will take a stand against tendentious provisions aimed at giving the Government the right to control the activities of Chadian workers' organizations.

B. The Committee's conclusions

441. The Committee regrets that, despite the time which has elapsed since the complaint was presented, the Government has not replied to any of the allegations of the complainant organization, although it was invited on several occasions, including by means of an urgent appeal, to present its comments and observations on this case.

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

443. The Committee reminds the Government that the purpose of the whole procedure instituted by the International Labour Organization to examine alleged violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee is convinced that, if it protects governments against unreasonable accusations, governments on their side must recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such allegations made against them. [See the Committee's First Report, para. 31.] The Committee notes in this connection that, in another case examined at this meeting, the Government has replied to the allegations put forward. The Committee therefore encourages it to see that replies are provided to all of the complaints made against it.

444. The Committee notes that the complaint of the CST concerns discriminatory treatment of this organization with respect to other trade union confederations, in particular in the procedures concerning international labour standards, representation on national committees or meetings and in relations with the Ministry of the Public Service and Labour. The reply given to the CST by the Government appears to indicate that the latter denies the representative nature of the CST.

445. The Committee notes that the situation has improved, according to the information supplied by the complainant organization itself. The Committee notes that in November 1995 the Government sent copies of the reports on ratified Conventions for the period from 31 July 1994 to 30 June 1995, in reply to the CST's request in September 1994. It also notes that the Government has invited the complainant organization to participate in a seminar on the draft labour code. It notes further that the Government has invited the CST to participate in a meeting concerning the situation of public servants and that the CST was able to express its views on that occasion.

446. However, the Committee observes that the problem remains with regard to participation in other bodies and meetings: appointment of representatives of trade union organizations on the High Committee for Labour and Social Security, appointment of representatives as members of the board of directors of the national social insurance fund, appointment of assessors in labour and social insurance courts, and participation in the joint commission set up to negotiate wage scales.

447. In this respect, the Committee recalls that the fact that a trade union organization is debarred from membership of joint committees does not necessarily imply infringement of the trade union rights of that organization. But for there to be no infringement, two conditions must be met: first, that the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, that in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 946.]

448. The Committee notes that the Government has recently taken steps to inform the CST and invite it to participate in a seminar and a meeting. If any doubt persists concerning the representativity of the CST, the Government should undertake an impartial and objective determination of the degree of representativity, in particular with respect to other existing trade union confederations and accordingly, it should take the appropriate measures in the event that the CST is the most representative union.

449. As regards the Ministry of Labour's refusal to respond to the demands concerning infringements of trade union rights of certain categories of workers to which the CST drew its attention, the Committee notes that the Government has not replied to the complainant organization. The Committee recalls that the Government should respond without undue delay to the demands and claims presented by trade union organizations, especially concerning a problem as fundamental as the denial of the right to organize, which is recognized for all workers, without distinction whatsoever, by Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Chad.

The Committee's recommendations

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

The Committee notes that some progress has been achieved in relations between the Government and the CST, in particular as regards transmission to the CST of a copy of government reports on the application of ratified Conventions, as well as the invitation to the CST to participate in a seminar on the draft labour code and in a meeting concerning the situation of public servants.
As regards participation of the CST on joint or tripartite bodies, if there is any doubt as to the representativity of the CST, the Committee requests the Government to undertake an objective and impartial determination of the degree of representativity and to take the appropriate measures in the event that it turns out to be the most representative union.
As regards the Ministry of Labour's refusal to respond to the demands concerning infringement of trade union rights of certain categories of workers, the Committee requests the Government to reply without undue delay to the claims and demands made by the trade unions, especially those concerning an issue as fundamental as the right of workers to establish and join organizations of their own choosing.

Case No. 1893

Definitive report

Complaint against the Government of Chad

presented by

the International Confederation of Free Trade Unions (ICFTU)

Allegations: Suspension of a trade union organization
and occupation of its headquarters

451. The complaint in this case is contained in a communication from the International Confederation of Free Trade Unions (ICFTU), dated 4 July 1996. The Government sent its observations in communications of 17 July and 5 September 1996.

452. Chad 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

453. In its communication of 4 July 1996, the International Confederation of Free Trade Unions (ICFTU) alleges that on 2 July 1996, the government authorities suspended, until further notice, the activities of the Union of Trade Unions of Chad (UST) throughout the country. The complainant organization adds that the government authorities are interpreting incorrectly the UST regulations, since they argue that certain views recently adopted by UST in relation to the current political situation in the country appear to run counter to the "apolitical and neutral nature" of the trade union organization. ICFTU states that the government authorities appear to be ignoring the fact that article 2 of the UST regulations provides that "the organization reserves the right to pass judgement on political decisions which may have repercussions on the lives of workers" and that, although UST decided, in accordance with its members' wishes, to adopt a stance in the national political debate so as to further the achievement of its economic and social objectives, the measure taken by the Government, designed to eradicate the UST's means of operating, is incompatible with the principles of freedom of association.

454. Similarly, ICFTU alleges that on 29 June 1996 the security forces occupied UST headquarters, without a court order, and that such an action was designed to prevent the general workers' assembly, due to be held on the same day, from taking place.

B. The Government's reply

455. In its communication of 17 July 1996, the Government states that following the collapse of the dictatorship on 1 December 1990 the country became a pluralist democracy, and that this kind of system presupposes that various freedoms may be exercised; if such freedoms are to be enhanced it is necessary for all social players to demonstrate a sense of responsibility and moderation, all the more so in a country which for decades has been beleaguered by hostilities and armed conflicts. The Government adds that it is important for the social players concerned to understand the nature and role of the different organizations responsible for the economic, social, cultural and political life of the country. This means that the roles played by the different parties, the limits of their various remits and the different types of organization should not be confused. The Government states that a trade union organization has no reason to get involved in political struggles, or to adopt a stance in conflicts opposing the different political parties. The Government points out that in a UST press release of 24 June 1996, the trade union organization states that it has decided "henceforth to work for and direct its activities towards a permanent struggle for national liberation" (the Government sent with its reply, the press release in question according to which the UST insists that its affiliates should not take part in the presidential election). The Government states that such a statement conveys a clear willingness for change decided upon by the leaders of the organization in question and appears to be motivated by the following two fundamental concepts which are incompatible with its role as a trade union: (a) the concept of permanent revolution well known in the political circles with strong ideological links to the extreme left of the international communist movement; and (b) the concept of the struggle for national liberation underpinned by that of armed rebellion. Finally, the Government states that in this context it was decided to suspend the activities of the Union of Trade Unions of Chad, whose leaders demonstrated, during the last presidential elections, excessive activism, and that the decision taken by the Government was a precautionary measure. The Government makes it clear that after the organization was suspended so as to allow the second round of the presidential poll to be conducted correctly, the measure in question was lifted on 30 July 1996 (the Government sent a copy of the relevant decision).

456. In its communication of 5 September 1996, the Government states that the occupation of UST headquarters by security forces on 29 June 1996, the date on which a general assembly was due to take place, was necessary in order to prevent any kind of unrest, given that UST was planning to boycott the second round of the presidential poll during the period of the assembly, which would be detrimental to state security. Finally, the Government points out that the security forces withdrew the day after the occupation, once order had been restored.

C. The Committee's conclusions

457. The Committee observes that the allegations refer to the suspension of the activities of the Union of Trade Unions of Chad (UST) and the occupation of its headquarters.

458. The Committee takes note of the fact that in relation to the allegations presented the Government declares that it introduced precautionary measures in the context of political elections in which UST urged its members not to vote in a communiqué sent to them. The UST communiqué, forwarded by the Government, also states that the activities of the trade union organization were to be directed towards the struggle for national liberation. In this connection, the Committee recalls that "it is only in so far as trade union organizations do not allow their occupational demands to assume a clearly political aspect that they can legitimately claim that there should be no interference in their activities. On the other hand, it is difficult to draw a clear distinction between what is political and what it 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" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 457].

459. In this case, the position adopted by UST, while partly political in character, has given rise to the suspension of its activities by administrative authority. Such a measure therefore undoubtedly constitutes a violation of Article 4 of Convention No. 87, ratified by Chad, which provides that "workers' and employers' organizations shall not be liable to be dissolved or suspended by administrative authority". Consequently, the Committee expresses its profound regret that the Government has resorted to such a measure. However, the Committee observes that the suspension has already been lifted.

460. As regards the occupation of UST headquarters by security forces, the Committee draws the Government's attention to the fact that on numerous occasions it has emphasized that "the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so" [see Digest, op. cit., para. 175].

461. Furthermore, observing that the occupation of UST headquarters occurred on the day when the workers' general assembly was due to take place, the Committee reminds the Government that "the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict this right or impede its exercise ..." [see Digest, op. cit., para. 130].

462. Given the circumstances, the Committee urges the Government to take the necessary measures so that, in future, suspension measures are not taken in relation to trade union organizations by administrative means or trade union premises occupied without legal warrant.

The Committee's recommendation

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

The Committee emphasizes that the suspension of a trade union organization by administrative authority and the occupation of trade union premises without a legal warrant for the purposes of interrupting trade union meetings constitute serious violations of the principles of freedom of association. The Committee urges the Government to take the necessary measures so that in future such measures as the above do not recur.

Geneva, 14 November 1996.

Max Rood,

Chairman.

Points for decision:

Paragraph 80;
Paragraph 101;
Paragraph 116;
Paragraph 133;
Paragraph 147;
Paragraph 164;
Paragraph 182;
Paragraph 205;
Paragraph 228;
Paragraph 253;
Paragraph 272;
Paragraph 288;
Paragraph 314;
Paragraph 326;
Paragraph 371;
Paragraph 382;
Paragraph 396;
Paragraph 412;
Paragraph 433;
Paragraph 450;
Paragraph 463.

1. The cases are in French alphabetical order.

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