GB.272/5 - 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 28 and 29 May and 5 June 1998, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, French and Panamanian nationalities were not present during the examination of the cases relating to Argentina (Cases Nos. 1867, 1887 and 1939) France/Guiana (Case No. 1929) and Panama (Cases Nos. 1931 and 1932), respectively.

3. Currently, there are 51 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 19 cases on the merits, reaching definitive conclusions in nine cases and interim conclusions in 10 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. 1958 (Denmark), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1962 (Colombia), 1963 (Australia), 1964 (Colombia), 1966 (Costa Rica), 1967 (Panama), and 1968 (Spain) because it is awaiting information and observations from the governments concerned. All these cases relate to complaints or representations submitted since the last meeting of the Committee. In Case No. 1959 (United Kingdom/Bermuda), the Government stated that information had been requested from the authorities in Bermuda and that a complete reply would be furnished as soon as it was received by the Government. In Case No. 1963 (Australia), the Government announced that its observations will be sent.

Observations requested from governments

5. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1812 (Venezuela), 1851 (Djibouti), 1865 (Republic of Korea), 1869 (Latvia), 1922 (Djibouti), 1944 (Peru), 1947 (Argentina), 1948 (Colombia), 1951 (Canada/Ontario), 1953 (Argentina) and 1955 (Colombia). In Case No. 1865 (Republic of Korea), the Government announced that its observations will be sent.

Observations requested from complainants

6. In Case No. 1949 (Bahrain), the Committee is awaiting the comments of the complainant organizations. The Committee requests these organizations to send the observations and information requested without delay.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1927 (Mexico), and 1965 (Panama), the governments have sent partial information on the allegations made. The Committee requests 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. 1787 (Colombia), 1934 (Cambodia), 1942 (China/ Hong Kong Special Administrative Region), 1950 (Denmark), 1954 (Côte d'Ivoire) and 1960 (Guatemala), the Committee has very recently received the Government's observations and intends to examine the substance of this case at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1873 (Barbados) and 1956 (Guinea-Bissau), the Committee observes that, despite the time which has elapsed since the submission of the complaint or the last examination of the case, it has not received the observations of the governments concerned. The Committee draws the attention of the governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases, if their observations or information have not been received in due time. The Committee accordingly requests these governments to transmit their observations or information as a matter of urgency.

Transmission of cases to the Committee of Experts

10. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Canada/Manitoba (Case No. 1928), Canada/Ontario (Case No. 1943), Indonesia (Case No. 1773), Panama (Case No. 1931) and Peru (Case No. 1906).

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

Case No. 1837 (Argentina)

11. At its meeting in March 1997 [see 306th Report, paras. 16-18], the Committee last examined this case concerning acts of violence that occurred during demonstrations and strikes organized in the Provinces of Tierra del Fuego, Corrientes and San Juan, and in particular the death of the worker Víctor Choque, the injuries sustained by unionists Juan Roberto Vera and Alejandro Vásques, and the assault and denial of freedom of which trade union leaders Eloy Camus and Juan González, were victims. On that occasion, the Committee requested the Government to keep it informed of the results of the judicial inquiries under way concerning the detention of Mr. Juan González, the homicide of Víctor Choque (the Government informed the Committee that the judicial authorities had sentenced a police officer to nine years' imprisonment as the person responsible for his death, but that the verdict had been appealed), and the abduction of Mr. Eloy Camus. The Committee had also requested the Government to keep it informed of the judicial inquiries under way concerning the injuries sustained by trade unionists Juan Roberto Vera and Alejandro Vásques, as well as the legal proceedings brought by the police against the trade union leader Juan González.

12. In a communication dated 23 March 1998, the Government sent a copy of the ruling handed down by the judicial authorities of the Province of Tierra del Fuego, upholding the verdict sentencing a police officer to nine years' imprisonment as the person materially and criminally responsible for the homicide of Mr. Víctor Choque. The Committee takes note of this information and requests the Government to keep it informed of the results of the other judicial inquiries mentioned above.

Case No. 1509 (Brazil)

13. The Committee examined this case concerning the murder of the trade unionist Valdicio Barbosa dos Santos at its meeting of November 1997 [see 308th Report, para. 281]. On that occasion it noted that the Government had stated that there was sufficient circumstantial evidence to show that Mr. Marçal da Rocha -- who was at large -- was the actual perpetrator of the homicide and that Mr. Romualdo Eustaquio Luz Farias was still in detention and was being tried. In a communication of 9 April 1998, the Government states that: (1) the Public Ministry of the State presented its final allegations and requested the preventive detention of the accused persons; and (2) after an analysis of the documents of the proceedings, the Public Ministry concluded that other persons are involved in the homicide in addition to the accused and therefore ordered a new police investigation of the case. The Committee notes this information and requests the Government to inform it of the final outcome of the judicial proceedings under way, and of the new police inquiry to which reference is made.

Cases Nos. 1850 and 1870 (Congo)

14. The Government reports in its communication of 20 March 1998 that the situation of war which has just arisen in the country and the serious disruptions to which it has given rise have not allowed the matters pending before the Committee to be dealt with in the normal manner. The Government hopes to be able to provide information in this connection in the near future. The Committee takes note of this information and expresses the hope that the situation in the country improves and will enable a solution to be found to the matters pending. The Committee requests the Government to keep it informed in this respect.

Case No. 1938 (Croatia)

15. The Committee examined this case, concerning allegations of interference in trade union activities and with trade union assets, at its March 1998 meeting [see 309th Report, paras. 161 to 185]. The Committee had, inter alia, requested the Government to extend the period of negotiation regarding the division of immovable assets formerly owned by trade unions, if no agreement was reached within six months (the period set out in the Act on Associations). The Committee had asked to be kept informed in this regard.

16. In a communication dated 13 May 1998, the Government stresses that the property at issue is considerable, comprising more than the property owned by the trade unions before the Second World War. The Government also states that while the trade unions have not reached an agreement with respect to the division of trade union assets, the Government has still not proposed to the Parliament the criteria for such division, in an attempt to permit the trade unions to reach an agreement.

17. The Committee notes that the negotiation period has been extended, and recalls that the extension should be such as to ensure that the parties concerned are given a reasonable opportunity to reach an agreement. The Committee repeats its request that the Government determine the criteria for the division of immovable assets formerly owned by the trade unions in consultation with the trade unions concerned should they be unable to reach an agreement among themselves, and fix a clear and reasonable time frame for the completion of the division of the property once the period of negotiation has passed. The Committee also recalls its request that the Government forward to it a copy of the decision of the Constitutional Court as soon as it is handed down. Finally, the Committee again requests to be kept informed regarding all of the above-noted matters.

Case No. 1908 (Ethiopia)

18. At its meeting in November 1997, the Committee urged the Government to ensure that an independent investigation be carried out immediately into:

(i) the alleged attack against, and subsequent occupation of, the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP) on 4 November 1996; and
(ii) the alleged physical assault on Mr. Mulatu Gurmu, the FCTP Treasurer, on the same day, so as to identify and punish the guilty parties.

The Committee further requested the Government to institute an independent judicial inquiry into the allegation that irregular procedures were followed in nominating the new leaders of the FCTP. Finally, the Committee requested the Government to send a copy of the Federal High Court's decision confirming the cancellation of the registration of the former Confederation of Ethiopian Trade Unions (CETU) by the Ministry of Labour and Social Affairs [see 308th Report, para. 362].

19. As concerns the institution of an independent investigation, the Government indicates in a communication dated 23 February 1998 that it consulted all concerned bodies including the Federation of Commercial Trade and Printing (FCTP) in order to learn the truth of the matter. It adds that it understands that there is no concrete evidence which can justify the allegations in this case. On the contrary, the Government found that the allegations had been a sheer fabrication and disinformation of the former CETU and former FCTP leaders. The Government adds that the newly democratically elected FCTP leadership was perplexed when asked to nominate their representative to the independent investigation body and stated that there were no grounds for any of the allegations. Therefore, the Government indicates that it was unable to institute an independent investigation because all concerned bodies, including the FCTP, refused the proposal adding that, if such a crime had occurred, the victim could have brought the case before the court. Finally, the Government sent the Federal High Court's decision with respect to the cancellation of the registration of the former CETU.

20. The Committee notes this information. The Committee must recall, however, that it has already requested the Government on two occasions to carry out an independent investigation into the attack and occupation of the FCTP enterprises and the physical assault of the FCTP treasurer, Mr. Gurmu [see 306th Report, para. 458, and 308th Report, para. 359]. The Committee deeply regrets the Government's decision not to undertake such an investigation on the basis of the views expressed by the new FCTP leadership which are precisely what gave rise to the original complaints made in this case by the former leadership. The Committee requested the Government to institute an independent investigation precisely so that it might carry out full inquiries and establish the true facts of the case. The Committee would therefore once again urge the Government immediately to undertake an independent investigation into these matters. Furthermore, as concerns the new leadership of the FCTP, in its previous conclusions the Committee indicated that serious doubts appeared to surround the regularity of the procedures followed leading to the nomination of the new FCTP leaders and recalled the principle that, in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious. The Committee deeply regrets that the complaint raised by the former FCTP leadership in this regard has not been referred to the judicial authorities for an impartial determination. Moreover, the Committee considers that the absence of any independent review and impartial resolution to this question is likely to perpetuate the doubts about the legitimacy of the present leadership in a manner unfavourable to all parties concerned. The Committee therefore urges the Government, in the interests of all parties concerned, to institute an independent judicial inquiry into the allegation of the existence of irregular procedures for the nomination of the new leaders of the FCTP and to keep it informed of the progress made in this regard.

21. The Committee also notes the Federal High Court's decision confirming the cancellation of the registration of the former CETU. It notes from the judgement that the reasons given by the Ministry of Labour for the cancellation were that the Confederation was exercising its power beyond its jurisdiction, that it failed to work towards its objectives of, among others, strengthening the unity of the federations and that it did not rectify the matter when the Ministry advised them to do so. It appears from the judgement that six out of the nine member federations requested the Ministry to dissolve the Confederation because it was creating dissension among its members. A number of other broad allegations were made in the briefs before the Court against the former CETU. The judgement indicates that there is a procedure in the CETU constitution for dissolving the Confederation but this procedure was not used. Instead the Ministry was requested to cancel the registration of the CETU under the powers vested to it in section 120 of the Labour Proclamation. The relevant sub-section of section 120 provides broad authority to the Minister to cancel the registration of an organization where the organization is found to have engaged in activities which are prohibited under this Proclamation or performed acts which are contrary to its purposes and constitution and it is not willing to cease or remedy or eliminate them. The High Court judgement appears only to verify whether the Minister indeed had the power to dissolve the Confederation but does not actually review the allegations made against it which appear only generally in the judgement. Noting that the legislation on this point is contrary to freedom of association principles, the Committee requests the Government to amend it with a view to ensuring the full respect of these principles.

22. From the evidence available, this matter clearly appears to be related to internal dissensions within the CETU. Generally speaking, the Committee is not competent to make recommendations on internal dissensions, so long as the Government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 963]. In this case, however, cancellation of the former CETU by the administrative authority would appear to constitute intervention in the normal functioning of the organization, particularly given the existence of procedures for dissolution in the Confederation's constitution. Furthermore, the Committee would recall that, in cases of dissolution, judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87. In effect, if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee if the judges hearing such an appeal can only ensure that the legislation has been correctly applied [see Digest, op. cit., para. 683]. In the light of the above, the Committee requests the Government to undertake an independent investigation to verify the allegations made against the former CETU and to determine whether the administrative decision to cancel the organization did not constitute unjustifiable interference in trade union affairs contrary to the principles of freedom of association and, if so, to take the necessary measures to ensure the reinstatement of the former CETU executive. The Government is requested to keep the Committee informed in this regard.

Case No. 1876 (Guatemala)

23. At its March 1998 meeting, the Committee asked the Government to keep it informed of developments in the procedure against the Mariposa S.A. bottling enterprise relating to acts of anti-union discrimination and requested the Government to take measures for the reinstatement of those dismissed in their jobs if it were confirmed that they had been dismissed for their trade union activities [see 309th Report, para. 261(c)].

24. In a communication dated 23 March 1998, the Government sent a copy of the judgements of first and second instance relating to this matter. The latter judgement confirms the lower court's decision to fine the enterprise "for having contravened the laws of labour and social welfare by not reinstating in their jobs" two workers who had been dismissed without legal cause.

25. The Committee notes this information but observes that in the facts outlined in the judgement no mention is made of the persons concerned being trade unionists or that they had been subjected to anti-union measures. Given this situation, the Committee will not pursue its examination of this question.

26. Nevertheless, the Committee regrets that no observations were provided on the other pending questions relating to this case, and it therefore repeats the recommendations it formulated in this connection at its March 1998 meeting [see 309th Report, paras. 261(b), (c) and (d)].

The Committee requests the Government to keep it informed of developments in the inquiries into the rape of trade unionist Vilma Cristina González and into the detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarmino González de León.
As regards the allegations relating to acts of discrimination (International Textile Corporation enterprise, El Salto farm, and Las Delicias farm) the Committee once again stresses the importance of remedying all acts of anti-union discrimination and asks the Government to keep it informed of the progress of these procedures. The Committee requests the Government to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activities.
The Committee requests the Government to keep it informed of the results of the legal proceedings currently under way relating to the dismissal of trade unionists Juan José Morales Moscoso and Everildo Revolorio Torres and to take measures for the reinstatement of those dismissed in their posts if it is confirmed that they were dismissed for their trade union activities.

Case No. 1877 (Morocco)

27. At its session in June 1997, having examined the allegations concerning the anti-union measures taken by the management of SOMADIR factories in Casablanca and El Jadidale against workers, and in particular against union leaders and staff representatives, between 1994 and 1996, the Committee formulated the following recommendations [see 307th Report, paragraph 404]:

Recalling that under Convention No. 98 workers shall enjoy adequate protection against acts of anti-union discrimination, the Committee requests the Government to take all necessary measures to ensure that the workers who were dismissed or suspended due to their legitimate trade union activities, namely Messrs. Mohammed Horane, Mohammed Karim, Bouchaib Adrif, Abdelkébir Kaboul, Mohammed Fahmi, Allal Louinate, Meziane Azzay, Abdelilah Marhoum, Brahim Achrait, Rachid Anaddam, Mustapha Bouachamia, Mohammed Boukhima, Bouchaib Moundir, Hassan Raoui, Abderrahim Oussamam, Rachid Labed, El Mustapha Achoute, Abderrassoul Ghazza, Najib Boudriga, Abdellah El Hassi, Mohammed Mifdal, Jamal Bella, Ahmed Nouamane and Saad Taha be immediately reinstated in their jobs, if they so wish. The Committee requests the Government to take all necessary measures so that the SOMADIR enterprise does not have recourse to anti-union measures and requests the Government to keep it informed in this connection.
Noting that the dispute between the workers and the management of the SOMADIR enterprise was submitted to the Consultative Council for the Promotion of Social Dialogue, the Committee requests the Government to forward to it a copy of the decision as soon as it is handed down.

28. In a communication of 27 March 1998, the Government states that, as regards the collective dispute between the management and staff of SOMADIR, following the normal resumption of activities within the company from 11 July onwards, the parties to the dispute had started negotiations under the terms of an agreement providing for the reinstatement of 33 employees, including four staff representatives, and the payment of compensation to other dismissed workers in accordance with national legislation in force. However, the dismissed workers, believing that their rights were infringed, rejected the agreement and chose instead to settle their dispute with the company by judicial means. The parties have accordingly initiated legal action challenging the dismissals before the competent judicial bodies, which to date have given no ruling on the matter. The text of any such rulings will be communicated to the ILO as soon as possible.

29. The Committee requests the Government to keep it informed of developments with regard to the judicial action taken in this matter.

Case No. 1894 (Mauritania)

30. At its November 1997 meeting, the Committee urged the Government to take all the necessary measures to ensure that the Free Confederation of Workers of Mauritania (CLTM) and the Mauritanian Transport Workers' Federation (FTM) obtained legal recognition in the very near future so that they might defend and promote the interests of their members [see 308th Report, paras. 526-540].

31. Since then, the complainants indicated in a communication dated 8 March 1998 that the secretary-general and the workers' education officer of the CLTM, Messrs. Samory Ould Beye and Sid' Amed Ould Salek, had been arrested on 5 February 1998 at 2 p.m., and had since been held under house arrest.

32. At its meeting in March 1998, the Committee insisted that the Government take steps to ensure that both complainant organizations obtain legal recognition in the very near future and that the Government send its observations concerning the alleged arrest of their trade union leaders.

33. In a communication dated 5 May 1998, the Government states that, after analysing the by-laws of the Free Confederation of Workers of Mauritania (CLTM), and pursuant to section 9 of book III of the Labour Code, the Public Prosecutor of the Republic certified that the by-laws were legal. The Government adds that the Confederation has thus legally existed since 30 April 1998. In a communication of 11 May 1998, the Government states also that the trade union leaders referred to in the complaint have all been released and are entitled to full freedom of movement.

34. The Committee notes this information with interest. It nonetheless requests the Government to do everything possible to permit the other complainant organization, the Transport Workers' Federation (FTM), to obtain legal recognition as quickly as possible, as Article 2 of Convention No. 87 stipulates that workers shall have the right, without distinction whatsoever, to establish and join organizations of their own choosing. It requests the Government to keep it informed of any measures taken in this regard.

Case No. 1907 (Mexico)

35. At its meeting in June 1997, the Committee had left pending the question regarding the reinstatement of workers who had participated in a strike in the transport sector in 1996. The Committee thus formulated the following recommendations [see 307th Report of the Committee, para. 417]:

The Committee urges the Government to take all necessary steps to ensure that the workers of Autotransportes Tres Estrella de Oro SA de CV and Corsarios del Bajío SA de CV who took part in the strike and who did not return to work in a 24-hour deadline are reinstated in their jobs. If the Government is unable to abide by this recommendation, the Committee requests it to keep it informed of the legal difficulties which prevent it from reinstating the workers in their jobs.

36. In its communications of 17 November 1997 and 10 March 1998, the Government states that to date it has not been possible to reinstate the workers since the enterprises had obtained amparo (enforcement of their constitutional rights) by means of a review. The Government explains that this course of action is the final resort against actions which a party may consider to be in violation of constitutional safeguards. However, the Government states that many of the strikers appealed to the National Trade Union of Transport and Allied Workers to resume work in various enterprises of the group.

37. The Committee takes note of this information but regrets that not all the strikers have been reinstated in their jobs. However, given that the judicial authority has ruled in favour of the enterprises and the allegations date from 1996, it does not appear to be possible to enforce the reinstatement of those workers who remain out of work under existing legislation. The Committee therefore requests the Government to take steps to bring the parties concerned together with a view to achieving the reinstatement in their posts of as many of the dismissed workers as possible.

Case No. 1796 (Peru)

38. At its meeting of November 1997, the Committee requested the Government to keep it informed of the decision handed down by the Judiciary Branch concerning the dismissal of trade union officers Leonardo Cruzalegui, Delfín Quispe Saavedra, Dionisio Mejía Ramos (of the Iron and Steel Enterprise of Peru) and Iván Vildoso (Electrolima Enterprise, SA) [see 308th Report, para. 58]. As regards Mr. Vildoso, the complainant sent additional information according to which the Supreme Court revoked the decision handed down by the lower court thereby excluding his reinstatement in his job. Consequently, this trade union leader has presented a final appeal.

39. In its communication of 16 February 1998, the Government provides detailed information on the progress of the various appeals lodged by the officials in question. According to the information from the Government, the legal proceedings taken by Mr. Leonardo Cruzalegui have concluded and confirmed that the request for an annulment of the dismissal was without foundation, in view of the fact that the dismissal was due to a retrenchment, noted by the labour inspector, and took place during the course of a privatization scheme. As regards the other three trade union officials, no final ruling has yet been handed down due to the successive appeals which have been lodged.

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

Case No. 1813 (Peru)

41. At its meeting of November 1997, the Committee awaited further information on two cases involving legal proceedings on which it had requested to be kept informed of the outcome: (1) proceedings against several workers charged with the offence of disturbing the peace (Félix Castillo Pérez, Elí Pando Malpartida, Antonio Yupanqui Oré, José Palacios Huamanchuco, Felipe Gutiérrez Cárdenas and Julio Camacho Díaz); and (2) charges concerning the death of two trade unionists (Alipio Chueca de la Cruz and Juán Marcos Donayre Cisneros) [see 308th Report, paras. 59 and 60].

42. In its communication of 17 February 1998, the Government states that as regards the workers charged with the offence of disturbing the peace following incidents which occurred in the offices of the Corporation for the Development of El Callao (CORDECALLAO), the judicial authorities have closed the case on the ground of the extinction of the right of criminal action due to the statute of limitations. The Committee takes note of this information.

43. As regards the proceedings concerning the death of the trade unionists Alipio Chueca de la Cruz and Juán Marco Donayre Cisneros as a result of the shots fired by CORDECALLAO security staff, the Government states that three persons have been charged with the offence of causing grievous bodily harm resulting in the death of the trade unionists and with the illegal possession of firearms. The Government adds that the proceedings have not been concluded and that it will keep the Committee informed in this respect. The Committee requests the Government to inform it of the outcome of these proceedings.

Case No. 1878 (Peru)

44. In its previous examination of the case, the Committee requested the Government to provide its comments regarding certain observations of the complainant organization (the Single Trade Union of Technicians and Specialized Auxiliaries of the Peruvian Social Security Institute -- SUTAEIPSS) formulated in its communication of 12 September 1997 [see 308th Report, para. 64]. Subsequently, that organization sent new communications dated 10 November 1997, 24 and 30 January and 14 February 1998 (in the last of these, the complainant requested the Committee to confine itself to giving an opinion on matters relating to collective bargaining).

45. SUTAEIPSS indicates that its 1997 claims have not been settled and the Government has awarded a 16 per cent pay rise to workers at the Peruvian Social Security Institute; this pay rise was implemented as a result of the Union's struggle. However, the Institute has not set up the joint committee and has chosen to grant the pay increase separately from the 1997 claims. The Union adds that it has transmitted its list of claims for 1998 to the Institute and it is to be expected that the situation of 1997 will be repeated. The complainant hopes that public servants will be guaranteed the right to engage in collective bargaining as part of the current reform of the Act concerning collective labour relations. The complainant also notes that there has been an improvement in relations between the Union and the Institute and that other issues have been resolved.

46. In its communications of 29 December 1997 and 10 March 1998, the Government states that the delay in the collective negotiations was caused by the complainant. According to the Government, it was these negotiations that resulted in the 16 per cent pay rise for workers at the Institute. Furthermore, national legislation guarantees the rights set out in Conventions Nos. 87 and 151.

47. The Committee takes note of the complainant's allegations and the Government's statements. It notes with interest that the dialogue and talks between SUTAEIPSS and the Peruvian Social Security Institute made implementation of the 16 per cent pay rise possible and that the Union emphasizes the improvement that has taken place in its relations with the Institute. However, the Committee notes that the talks between the parties appear to have arisen informally, that the complainant's concern at the moment is the establishment of the joint committee and to ensure that current reforms to the Act concerning collective labour relations create a legal framework in which collective bargaining between the parties can take place satisfactorily. Under these circumstances, the Committee requests the Government to examine the reasons for which the joint committee has still not been set up and to take measures to promote collective bargaining for 1998 at the Institute.

Case No. 1926 (Peru)

48. The Committee examined this case at its November 1997 meeting [see 308th Report, paras. 610-634], when it requested the Government to: (i) take the necessary steps to recognize the SUTREL (Unified Trade Union of Electricity Workers of Lima and Callao) trade union sector's right to represent its members and bargain collectively on conditions of employment, at least on behalf of its own members; (ii) carry out an inquiry into the allegation of the General Confederation of Workers of Peru (CGTP) concerning the anti-union nature of the dismissal of officers of several trade union organizations; (iii) ensure that, where it is necessary to implement the process of collective termination of employment for objective reasons, negotiations are held between the enterprises concerned and the trade union organizations; and (iv) take the appropriate measures to guarantee the full application of the Convention as regards the allegations of the CGTP concerning threats of dismissal received by trade union officers.

49. In a communication of 7 May 1998, the Government states that the administrative labour authority declared invalid the claims submitted by the SUTREL trade union section at the Luz del Sur Servicios S.A. enterprise, as they concerned a branch trade union which represented workers of various allied enterprises, and that a membership of at least 100 members was required in order for the union to be established and to exist. The Government further adds that a collective agreement was already signed in January 1997 between that enterprise and the majority of its workers. In this respect, the Committee first would recall that the requirement of a minimum membership of 100 workers in order to establish a branch trade union has been criticized by the Committee of Experts, which considers the number excessive. Furthermore, the Committee once again recalls that direct negotiation between the enterprise and its workers, circumventing representative organizations when they exist, can in some cases be detrimental to the principle under which collective bargaining between employers and workers' organizations should be encouraged and fostered. It thus once again requests the Government to take the necessary steps to recognize the SUTREL trade union sector's right to represent its members and to bargain collectively on conditions of employment, at least on behalf of its own members.

50. As regards the allegations of the CGTP concerning the anti-trade union dismissal of the officers of several trade union organizations, the Committee notes that the Government has committed itself to conducting an investigation into this matter and will inform the Committee as soon as possible of its findings. The Committee thus awaits the findings of the investigation.

51. As regards the Committee's request that negotiations be held between the enterprises concerned and the trade union organizations where it is necessary to implement the process of collective termination of employment for objective reasons, the Committee notes with interest the Government's statement that section 48 of Presidential Decree No. 003-97-TR stipulates that in such cases the enterprise is obliged to negotiate concerning the conditions of termination of employment contracts or other steps to avoid or limit termination of employment. The Government adds that it would be difficult for the employer to use the process of collective termination for anti-union purposes, as the administrative labour authority takes part in the negotiations along with the trade union.

52. As regards the allegations of the CGTP concerning threats of dismissal of trade union officials, the Committee takes note of the Government's statement that the existence of such threats could not be proved, and that no reports thereof have been submitted to the competent national bodies.

Case No. 1785 (Poland)

53. In November 1997, the Committee had requested the Government to comply with its previous recommendation at an early date concerning the final and equitable redistribution of trade union assets between the two trade union confederations and to keep it informed in this regard [see 308th Report, para. 71].

54. In a communication dated 9 March 1998, the Government states that trade union organizations made 481 applications by 31 January 1998 in accordance with procedures defined by new provisions.

55. By 31 January 1998 the Social Revindication Commission issued pronouncements obligating the State Treasury to pay in cash or to compensate through non-monetary measures defined by acts the total amount of 57,540,505.78 PLN. Obligations of the State Treasury towards organizational units of the NSZZ "Solidarno" amount to 56,098,873.06 PLN. The remaining sum of money of 218,661.34 PLN is compensation for overpayments to trade unions obligated by virtue of former pronouncements to return the assets.

56. Cash compensations -- together with calculated statutory interests for delay -- will be, beginning from September 1998, made by voivods representing the State Treasury from the resources of target reserves of the State, allocated to them by the Minister of Finance.

57. The Government adds that realization of non-cash compensations will be carried out after the issuance by the Cabinet of an appropriate executive regulation, provided for in section 3(2), paragraph 3, of the amended Revindication Act. Works related to preparation of this regulation are being carried out.

58. It is beyond doubt that the question of non-monetary obligations of the State Treasury should be regulated in the best possible way through legislative provisions. Therefore the new Government is going to present in the Parliament, without an unreasonable delay, a draft amendment of section 3(2), paragraph 1, of the Revindication Act, as well as simultaneously preparing an executive Cabinet regulation, adjusted to the changes projected.

59. The Government states that the Minister of Labour and Social Policy issued a regulation of 27 June 1997 defining the list of immovables of the former Trade Union Association which are the property of the NSZZ "Solidarno" and the OPZZ. On the strength of this regulation the NSZZ "Solidarno" was assigned one immovable and the OPZZ -- three immovables. The Minister of Labour and Social Policy issued another regulation on 26 August 1997, according to which the NSZZ "Solidarno" was assigned another three immovables, and the OPZZ another six immovables.

60. The Minister of Labour and Social Policy also made a settlement following the division of the immovables of the former Trade Union Association to the effect that the OPZZ was obligated to return to the NSZZ "Solidarno", as a settlement, an amount of 331 PLN, because the total monetary value of the immovables listed in both ordinances, as assigned to the OPZZ, is higher than the total sum of monetary value of the immovables assigned to the NSZZ "Solidarno", while section 45 of the Trade Union Act stipulates that the immovables be divided in equal parts between the OPZZ and the NSZZ "Solidarno".

61. The NSZZ "Solidarno" expressed a critical attitude towards both the above-mentioned regulations of the Minister of Labour and Social Policy, of 27 June 1997 and of 26 August 1997, as well as the decision of 5 September 1997 concerning the settlement following the division of immovables of the former Trade Union Association.

62. The NSZZ "Solidarno" raised objections towards both regulations as being legally incorrect, as there was no basis for issuing them.

63. Consequently, the NSZZ "Solidarno" questioned also the decision of the Minister of Labour and Social Policy of 5 September 1997 concerning the settlement following division, since the real value of the immovables, adopted in this decision -- identical with the value stated in the regulations -- should be subject to another evaluation. In examining these objectives, the Supreme Chamber of Control stated that there was no need to conduct another pricing of the above listed immovables. However, the Chamber has not directly addressed the doubt, raised by the NSZZ "Solidarno", whether the Stock-Taking Commission took into account all the immovables which according to the Act should be subject to division. Neither did the Chamber address the objection that the Commission had not prepared a final listing of the catalogued buildings. However, the protocol of examination of the Supreme Chamber of Control presented -- as a subject of examination -- critical remarks, doubts and objections concerning the respective stages of work of the Stock-Taking Commission.

64. Due to the legal complexity of the question of the division of assets of the former Trade Union Association, the Government states that the Minister of Labour and Social Policy is not ready to express his opinion now. It will inform the Committee when the Minister of Labour and Social Policy takes a final decision.

65. The Committee notes with interest that decisions concerning cash compensation to trade union organizations will be beginning from September 1998 and that some assignations of immovables to NSZZ "Solidarno" and OPZZ have been made. The Committee notes the complexity of the question of divisions of assets of the former Trade Union Association as well as the objections of NSZZ "Solidarno" concerning various decisions and regulations of the Minister of Labour and Social Policy and the work of the Stock-Taking Commission. The Committee expresses the hope that these issues will be resolved in the near future and asks the Government to keep it informed of any progress.

Case No. 1895 (Venezuela)

66. During its November 1997 meeting [see 308th Report, paras. 672 to 684], the Committee examined allegations concerning the arbitrary detention of Mr. José Ramón Pacheco, President of the Single Grass-Roots Union of Workers of the Department of Education (SUBATRA). The Committee requested the Government to keep it informed of the results of the criminal proceedings against the trade union officer in question for suspected falsification of documents. In a communication of 24 February 1998, the Government informed the Committee that the judicial authorities have decided to release Mr. José Ramón Pacheco while the investigation continues concerning the crime of falsification of documents which he is alleged to have committed. The Committee takes due note of this information, and requests the Government to keep it informed regarding the results of the judicial proceedings against the trade union officer, Mr. José Ramón Pacheco.

67. Finally, as regards Cases Nos. 1512/1539 (Guatemala), 1581 (Thailand), 1719 (Nicaragua), 1809 (Kenya), 1819 (China), 1824 (El Salvador), 1826 (Philippines), 1834 (Kazakhstan), 1843 (Sudan), 1863 (Guinea), 1883 (Kenya), 1886 (Uruguay), 1890 (India), 1891 (Romania), 1895 (Venezuela), 1900 (Canada/Ontario), 1903 (Pakistan), 1912 (United Kingdom/Isle of Man), 1916 (Colombia), 1918 (Croatia), 1920 (Lebanon), 1921 (Niger), 1925 (Colombia), 1936 (Guatemala), and 1945 (Chile), the Committee requests the governments concerned to keep it informed of any developments relating to these cases. It hopes that these governments will quickly furnish the information requested. In addition, the Committee has recently received information concerning Cases Nos. 1594 (Côte d'Ivoire), 1618 (United Kingdom), 1698 (New Zealand), 1849 (Belarus), 1852 (United Kingdom), 1854 (India), 1862 (Bangladesh), 1864 (Paraguay), 1913 (Panama), 1937 (Zimbabwe) and 1940 (Mauritius) which it will examine at its next meeting. In Case No. 1912 (United Kingdom/Isle of Man), the Government states that a reply will be furnished as soon as the Isle of Man authorities send it.

Case No. 1867

Definitive report

Complaint against the Government of Argentina
presented by
the State Workers' Association (ATE)

Allegations: Transfer and dismissal of a trade union official
on account of his trade union activities

68. The Committee examined this case for the last time at its meeting of March 1997 when it presented an interim report to the Governing Body [see 306th Report, paras. 56-69, adopted by the Governing Body at its 268th Session (March 1997)]. Subsequently, the State Workers' Association (ATE) sent additional information in a communication dated 31 July 1997.

69. The Government sent its observations in a communication dated 27 February 1998.

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

A. Previous examination of the case

71. At its previous examination of the case, when it analysed the allegations made concerning the transfer and subsequent dismissal of a trade union official due to anti-trade union reasons, the Committee noted that the complainant's and the Government's versions of the events were contradictory. In particular, the Committee noted in its conclusions that [see 306th Report, paras. 65 and 66]:

... according to the complainant organization, the decision to transfer the trade union official Miguel Hugo Rojo from one workplace to another and the subsequent measures taken against him were on account of his trade union action in a collective dispute which began at the beginning of February 1992. According to the documentation presented by the complainant, strikes took place and accusations were made of financial irregularities and corruption -- such as an administrative resolution which changed the rules pertaining to the "incentive fund" for workers. The Committee also notes that the Government denies that the measures taken against Miguel Hugo Rojo had anti-union motives. The Committee nevertheless notes that the administrative resolutions containing the grounds for the transfer of Miguel Hugo Rojo and the penalties against him, which have been communicated by the complainant organization, indicate the following:

for reasons of service and with a view to consolidating its skilled staff, the internal auditing department temporarily transferred the employee Mr. Rojo -- tax inspector --to another department;
the person concerned refused to comply with this order, despite the fact that it was repeated; he then put in writing that the person who had decided the transfer "lacked the necessary moral fibre to conduct the organization and was totally unable to function", which caused "moral damages to his hierarchical superior, undermining his honour and reputation" ("slander");
after having "failed to fulfil his duties" and "being disrespectful and insulting to his superiors", which made him "subject to disciplinary measures", he was suspended;
"the failure to carry out services individually and on a regular basis constitutes a form of misconduct subject to a penalty, particularly in view of the fact that the accused clocked in and out of work with a card and failed to carry out the services he was supposed to do, which implies fraudulent behaviour and a violation of article 11(a) of the Statutes; this is tantamount to a desertion of duties which gives rise to the suspension of an official (article 36(c)) under these Statutes";
"another charge against the accused is the failure to comply with the requirement under article 11(k) of the Statutes, in other words to maintain a respectful attitude; indeed, on one occasion he displayed physical violence and, on others, made verbal threats".

The Committee notes that the versions given by the complainant and the administrative authority concerning the transfer of and the penalties imposed on the trade union official Miguel Hugo Rojo are contradictory.

In these circumstances, the Committee made the following recommendation [see 306th Report, para. 69]:

In order to arrive at its conclusions in full knowledge of the facts, especially concerning whether the transfer of Miguel Hugo Rojo was for anti-union reasons and concerning his non-reinstatement, the Committee requests the complainant and the Government to provide supplementary information, in particular regarding the administrative decisions and judgements that have been rendered on this subject.

B. Additional information from the complainant

72. In its communication of 31 July 1997, the State Workers' Association (ATE) rejects the argument of the Province of Salta and the Argentinian Government that the suspension and subsequent dismissal of Mr. Rojo were not questioned and were not related to the participation of the trade union official in trade union activities. The trade union dispute was made public and discussed in the local press through the personal participation of Mr. Rojo; it is undeniable this prompted the employer to apply the discriminatory sanctions of suspension and dismissal. The trade union organization states that the suspension and dismissal sanctions were not ordered for "reasons of service" or "failure to carry out services", as falsely claimed by the Government, but during and on the occasion of or after the trade union dispute, and as a reprisal for the protection of workers' interests which the trade union association and official in question carried out. According to the ATE, the protection of such rights in no way morally damaged his hierarchical superior or undermined his honour and reputation and in no way did he commit an offence of slander, since as can be seen from the sentences handed down in the legal proceedings against members of the General Incomes Board on charges of fraud against the public administration, abuse of authority and desertion of the duties of public officials to the detriment of the Province of Salta, proceedings were taken against several persons of the administration accused of having committed these offences (the complainant sends a copy of these documents). There is no doubt that the dispute and the suspension and dismissal occurred around the same time, since the latter were ordered immediately after the trade union dispute. There could not be any desertion of duties on a personal basis when the trade union official was exercising the right to strike, at the same time as all the employees of the General Incomes Board and other ATE trade union leaders.

73. The ATE emphasizes that the discrimination was evident since only Mr. Rojo was sanctioned and no penalty was applied against any other trade union leader or member participating in the dispute. However, the apparent disciplinary sanction was no such thing because Mr. Rojo did not commit any malicious acts, or display any physical violence or make any verbal threats, or fail to comply with the obligations required by the Public Service Statutes. This can be seen in the lack of evidence from the Government, whether administrative or judicial, concerning the charges and action taken against Mr. Rojo in respect of the supposed offences (the complainant includes several press cuttings on this allegation).

74. The complainant adds that it appears from the file of Graciela Castro (Director of the General Incomes Board) on the compulsory conciliation hearing with staff of the General Incomes Board submitted to the Provincial Labour Directorate that the Province of Salta, through the Director of the General Incomes Board, requested compulsory conciliation in the labour dispute concerning its staff who, from 5 March 1992, took direct action measures following the modification and reduction of salaries. The ATE agreed to halt the direct action measures following the intervention of the regional delegate of the General Confederation of Labour. In the same way, the complainant states that it is clear from resolution 231/87 and the minutes of 18 August 1987 that the collective dispute was clearly of a trade union nature and thus arrangements were made for compulsory conciliation, it having been expressly agreed in point 6 "on the basis of the present structure of the General Incomes Board to draw up the corresponding list of posts by common agreement by 21 August 1987, for approval by 31 August 1987, with the participation of the trade union representation in this process, it being established that no person currently providing effective services in this body may be excluded". The complainant points out that in the final analysis the collective dispute and the personal situation of Mr. Rojo at his workplace were subjects of negotiation during the conciliation stage. The complainant also includes a copy of the different judicial decisions handed down concerning Mr. Rojo.

75. The trade union organization states that on 1 September 1992, the Chamber of Deputies of the Province of Salta examined and adopted the following draft declaration: "The Chamber of Deputies of the Province of Salta ... declares: ... its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127, ordered the dismissal of Mr. Rojo, an employee in the General Incomes Board and currently Secretary General of ATE, and would welcome arbitration by the Provincial Executive Branch concerning the necessary measures to be taken with a view to reconsidering the measure adopted". During the debate, an analysis was made of the validity and application of national Act No. 23551 at the provincial level, and a decision was adopted by majority vote that the trade union official should be reinstated in his job since he had been the victim of an act of discrimination, in reprisal of his trade union functions.

76. The complainant adds that in addition to the initiation of summary proceedings applicable to cases involving trade union protection in the Administrative Court, Mr. Rojo also challenged Decrees Nos. 1127/92 and 1825/92 as being null and void and unconstitutional as well as the entire administrative procedure ordering his dismissal and, having exhausted the administrative appeal procedure without having obtained his reinstatement, took the matter to the Administrative Court on 23 February 1993. According to the complainant, this documentary evidence refutes the false argument of the government of the Province of Salta and the national Government which claim that Mr. Rojo did not challenge his dismissal. On the contrary, it shows that having made use of the legal recourse of the summary procedure applicable to cases involving trade union protection, the plaintiff obtained in the first instance a ruling in favour of his reinstatement which was overturned in the second and third instances on purely formal grounds, in violation of ILO treaties and Conventions. (The complainant appends a copy of the above-mentioned file.)

C. The Government's reply

77. In its communication of 27 February 1998, the Government states that the complainant alleges infringement of the guarantee of stability provided for by the Act respecting trade union associations, No. 23551, and that this legal right is typified as a form of explicit protection by ILO Convention No. 135, without prejudice to the fact that both Convention No. 98 and Convention No. 151 oblige States to take measures to guarantee appropriate freedom of bargaining, whether as regards private activity or public activity proper, but without requiring any specific conduct by the State to guarantee the legal protection in question. Convention No. 135 establishes that workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers' representatives. For its part Convention No. 98 does not make any specific reference to a form of trade union protection but, in accordance with the provisions of Articles 1, 3 and 4, it can be inferred that States may decide for themselves the form for implementing and adopting the provisions of the Convention in national legislation. In this last case -- Convention No. 98 -- it should also be noted that the international instrument itself does not deal with the position of public servants directly engaged in the administration of the State as well as officials in lower categories who act as assistants to persons in such categories, and therefore this instrument does not cover Mr. Rojo, since he was employed in the central administration and more specifically in the General Incomes Board of the Province of Salta. The Government points out that neither Convention No. 98 nor Convention No. 135 are applicable to the matters raised in the present complaint, and that it does not see how Convention No. 87 is applicable to the plaintiff's situation.

78. The Government states that the newspaper cuttings presented by the complainant do not show that the conduct of the parties reflected a situation of dispute suggesting an outcome such as that which occurred, since at all times trade union action has been free of any influence by the State; there is no indication of any activity by the government of Salta which tends to limit this right or hinder its legal exercise. The Government adds that the proceedings against Mr. Rojo referred to aspects which had nothing to do with trade union claims and that it was a recognized fact that he did not present himself for work at the required place and that his reasons for non-appearance were not consistent with the alleged argument of persecution; according to the Government, the reasons given were more indicative of a culpable attitude and these reasons were further supplemented in the statement of general references to corruption, matters which without prejudice to their serious nature fall outside the scope of Convention No. 87 and which are regulated by disciplinary procedures unrelated to this international instrument and punishable by the respective laws on the subject. According to the Government the dispute developed without any kind of interference by the administration.

79. The Government states that the only international instrument ratified by Argentina which should be specifically applied to the activity of the plaintiff is Convention No. 151 but once again the provisions of the international instrument are not applicable to this case in a way which could result in an observation on the international adaptation of the principle. Convention No. 151 does not indicate to the State the manner in which this protection should be exercised; this may be through a variety of means and instruments. Therefore the Government states that the question arising in the present case lies outside any international jurisdiction and that it would only fall within the competence of the Committee if the dismissal were due to trade union membership or to normal activities carried out in the organization, but in this respect no evidence has been presented to demonstrate any action by the State in this sense. The Government adds that the complainant merely produces the documents used in the legal proceedings without even referring to the sufficiency of the legislation of the Province of Salta to guarantee the protection of trade union representatives in the public administration and that the case has been side-tracked by considerations of whether the standards established in sections 47 and 52 of Act No. 23511 may or may not be considered as powers which have or have not been delegated by the Province of Salta to the State, a matter which is not for the latter to decide, but which falls within the jurisdiction of the Province itself.

80. The Government states that the question which needs to be asked in this case is whether the government of Salta has established a protection system which prevents discriminations in the sphere of freedom of association or not. The Government replies in the affirmative, since irrespective of whether it is or is not a power which has been delegated and the validity in the Province of the procedure established by Act No. 23511, the legal scheme for the stability of public officials in the Province was never called into question and this scheme, together with the constitutional provisions, provided sufficient guarantees under the Act respecting trade union protection to comply with the provisions of Convention No. 151. According to the Government, no one in the public service may be dismissed without justified cause and without prior summary proceedings, which implies that the administrative authority may only dismiss workers on particular and justified legal grounds, a procedure which fully guarantees the provisions of Article 4(b) of Convention No. 151. The suspension of Mr. Rojo is not contrary to stability but is a preventive procedure pending the substantiation of the summary proceedings; in the same way, there has been no judicial ruling which has declared these summary proceedings null and void. The Government emphasizes that it is not correct that no guarantee is provided in Argentina of the protection of trade union rights by means of rapid and efficient procedures, and if the plaintiff makes a mistake in the choices available to obtain justice this is not a matter which concerns the administration, as the Court itself emphasized when it stated that he should have exhausted the administrative means available to him.

81. Finally, the Government states that the grounds on which the suspension and dismissal of Mr. Rojo were based were not due to his membership in an organization of public employees or his participation in the normal activities of such an organization, but to specific disciplinary measures which were not refuted in the proceedings carried out.

D. The Committee's conclusions

82. The Committee observes that the complainant has alleged in this case the transfer of the trade union official Mr. Rojo due to anti-union reasons and his subsequent dismissal.

83. First of all the Committee observes that the Government states that it is not appropriate in this case to refer to the application of Conventions Nos. 87, 98 and 135, since Mr. Rojo worked in the central administration of the Province of Salta and that, as regards Convention No. 151, both the legislation of the Province of Salta and the national legislation provide the necessary protection against possible acts of anti-union discrimination in the public administration. In this respect, the Committee emphasizes that, as the Government itself has indicated, Convention No. 151, ratified by Argentina, grants protection against acts of anti-union discrimination which can be committed at the level of the national public administration as well as at the provincial level. Furthermore, the Committee notes that the Government does not indicate whether Act No. 23551 respecting trade union associations (which provides protection against the dismissal of trade union officials) is applicable in the provincial public administration, and points out in any event that the public administration is governed by a provincial "system of public official stability".

84. In this respect, the Committee notes that it has already ruled on this aspect in its previous examination of the case and it refers in this connection to the conclusions made on that occasion, which state as follows: "The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable. The Committee nevertheless recalls that irrespective of the procedural or substantive laws applying to public officials or employees in provinces of the federal State, it is bound to examine whether the actual alleged anti-union discrimination measures are or not in accordance with the provision of ratified ILO Conventions and the principles of freedom of association" [see 306th Report, paras. 63 and 64].

85. As regards specifically the transfer and subsequent dismissal of Mr. Rojo, the Committee notes that the complainant repeats that these acts were committed as a reprisal to the protection of the workers' interests by the trade union association and the official in question, and that there is no doubt that the dispute and the measures taken against Mr. Rojo were directly related since the latter immediately followed the trade union dispute. The Committee notes that the Government also repeats that the reasons for which the suspension and dismissal of Mr. Rojo were ordered were not due to membership in a trade union organization or participation in the normal activities of such an organization, but to specific matters of discipline, which according to the Government have not been refuted in the procedures taken to date. Furthermore, in the view of the Government, Mr. Rojo did not make use of the appropriate legal means for dealing with his case.

86. In this respect, the Committee notes that, even after the previous examination of the case, the versions of the complainant and the Government continue to be contradictory concerning the anti-union motivation of the transfer and subsequent dismissal of Mr. Rojo. The Committee also notes that it appears from the documentation and the judicial rulings sent by the complainant that: (1) the Administrative Court of First Instance of the Province of Salta stated that "Act 23551 has established a protective legal procedure with regard to anti-trade union conduct" (section 52 of this Act stipulates that "workers protected by the guarantees for which provision is made in sections 40, 48 and 50 of this Act may not be dismissed or suspended and their conditions of work may not be changed without prior judicial resolution excluding them from the guarantee ...") and thus ordered the reinstatement of Mr. Rojo in his workplace; and (2) the Court of Justice of the Province of Salta overturned the ruling of the Court of First Instance on the grounds that Act No. 23551 is not applicable to public employees of the province but "without prejudice to the possible administrative and judicial revision of the legitimacy of the administrative acts (transfer, suspension and dismissal of the trade union official) in question by means of the appropriate appeals". The Committee notes that in this way the Court of Justice of the Province of Salta did not rule on whether or not there had been anti-trade union discrimination and indirectly referred the dispute between the parties, which dates from 1992, back to the administrative level and in this case to the administrative courts.

87. Bearing in mind all these elements, the Committee concludes that: (i) the collective dispute between the parties and the transfer of Mr. Rojo occurred at approximately the same time (the dispute began at the end of February 1992 and his transfer was ordered on 30 March); and (ii) although the administrative resolution dismissing Mr. Rojo refers to "slander" by the official against his hierarchical superior ("lacked the necessary moral fibre"), this occurred within a context of accusations about financial irregularities and corruption in the institution made by the complainant, which resulted in the legal proceedings against Mr. Rojo's superiors, which does not exclude the possibility that the measures against this official constitute a form of reprisal.

88. The Committee recalls in this respect that it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 740]. In any event, the Committee believes that in this case account should be taken of: (1) the important trade union post held by Mr. Rojo at the time when the dispute began (Secretary General of the Provincial Executive Council of the State Workers' Association of the Province of Salta); (2) the importance of this case for the Province of Salta (the Chamber of Deputies of the Province declared in September 1992 "its total disagreement with the procedure adopted by the Executive Branch of the Province, which by means of Decree No. 1127 ordered the dismissal of Mr. Rojo, and that it would like to see the provincial Executive Branch take the necessary steps with a view to reconsidering the measure adopted"; (3) the fact that the judicial appeal authorities have not ruled on the substance of this case (the existence or non-existence of anti-union discrimination) but merely examined whether Act No. 23551 (and in particular the provisions respecting trade union protection) was applicable to the trade union official of the Province of Salta, Mr. Rojo; (4) the absence to date of any definitive judicial ruling on whether the said (federal) Act and in particular the trade union protection which it regulates are applicable in the Province of Salta, so that the measures taken against Mr. Rojo (transfer and subsequent dismissal) are part of a context of legal uncertainty concerning its validity; and (5) the extremely long period of time which has elapsed (seven years) since the measures were taken against Mr. Rojo, without any final ruling having been made by the judicial authority. In these circumstances, the Committee considers that serious and concordant elements of presumption exist which lead it to believe that Mr. Rojo has been a victim of anti-union discrimination. The Committee requests the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post and, if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

The Committee's recommendation

89. 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 the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post and, if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

Case No. 1887

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

Complaint against the Government of Argentina
presented by
the Tram Drivers' Union (UTA)

Allegations: Restrictions on the right to

collective bargaining

90. The Committee examined this case during its May 1997 meeting and presented an interim report to the Governing Body [see 307th Report, paras. 55-69, approved by the Governing Body at its 269th Session (June 1997)].

91. The Government sent its observations in communications dated 9 May and 1 October 1997 and 27 May 1998. At its meeting of March 1998, the Committee deferred its examination of this case at the request of the Government.

92. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

93. When this case was last examined there were outstanding allegations from the Tram Drivers' Union (UTA) raising objections to the following Decrees laid down by the executive power: Decree No. 1553/96, empowering the Ministry of Labour to revoke the registration of a collective labour agreement; Decree No. 1554/96, empowering the Ministry of Labour to determine the scope of collective bargaining; and Decree No. 1555/96, containing certain provisions regarding collective bargaining within the framework of small enterprises (see annexed the relevant articles to the Decrees in question).

94. In its meeting in May 1997 the Committee formulated the following recommendation [see 307th Report, para. 69]:

With regard to the alleged restriction of the right to collective bargaining under Executive Decrees Nos. 1553/96, 1554/96 and 1555/96, the Committee expresses the hope that the Government, as it has indicated, will forward its observations shortly. Finally, the Committee requests the complainant to submit additional information regarding these allegations.

B. The Government's reply

95. In its communication of 9 May 1997, the Government indicated that Decrees Nos. 1553, 1554 and 1555 have been suspended since they were the subject of a case before the Supreme Court.

96. In its communication of 1 October 1997, the Government stated that the suspension of the application of Decrees Nos. 1553/96, 1554/96 and 1555/96 would remain in place. Moreover, a presentation to the Supreme Court by the General Confederation of Labour (CGT) and the State has led to an agreed suspension of the legal process on the case (the Government attaches to its reply a copy of the above-mentioned judicial presentation, endorsed by legal representatives of the CGT and by the Ministry of Labour and Social Security). In this presentation a suspension of the legal process for a period of 120 days, in order to arrive possibly at an out-of-court solution was requested (the Government also attaches a copy of the ruling of the Supreme Court in reply to this request). The Government adds that suspension of the proceedings will remain in place until the middle of December 1997, and consequently the Decrees in question have not had any practical application; and currently representatives from workers, employers and the national authorities are involved in preparing a draft agreement on collective bargaining.

97. In its communication of 27 May 1998, the Government forwarded a copy of the draft law on labour law reform, which has been presented to Parliament.

C. The Committee's conclusions

98. The Committee observes that, in this case, the complainant organization is alleging restrictions on the right to collective bargaining in virtue of the Decrees passed in December 1996 by the executive power: Decree No. 1553 (which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement), Decree No. 1554 (which provides that should there be disagreement among the parties the Ministry of Labour and Social Security will determine the scope of collective bargaining) and Decree No. 1555 (which provides for collective bargaining within the framework of small enterprises).

99. The Committee notes that the Decrees in question were declared wholly or partly unconstitutional by legal tribunals of first and second instance, and subsequently went before the Supreme Court.

100. In this respect the Committee notes the Government's indication that: (1) the Decrees were suspended from taking effect in virtue of judicial proceedings before the Supreme Court; (2) the Ministry of Labour and Social Security and the General Confederation of Labour (CGT) requested the Supreme Court to suspend the proceedings for a period of 120 days so that there was a possibility of arriving at an out-of-court agreement; (3) up until now the Decrees have not had any formal practical application; and (4) currently representatives of workers, employers and national authorities are in the process of drawing up a draft agreement on collective bargaining.

101. The Committee, in this context, proposes to examine the Decrees in question so that the principles of freedom of association and collective bargaining may be taken into account in the process of the legislative changes which the Government is carrying out with the social partners.

102. As regards Decree No. 1553/96, which empowers the Ministry of Labour and Social Security to revoke, in part or in whole, the registration of a collective labour agreement, the Committee notes that the Committee of Experts on the Application of Conventions and Recommendations, on analysing the application of Convention No. 98 by Argentina, has for several years criticized the legal provisions relating to the registration of collective labour agreements, and has also already commented on the conformity of the Decree in question with Convention No. 98 [see observation of the Committee of Experts on the Application of Conventions and Recommendations, Report III, Part 1A of 1998]. Therefore the Committee refers to the commentary of the Committee of Experts as follows:

The Committee recalls that for many years it has criticized the legal provisions relating to the granting of official approval by the Ministry of Labour for the validity of collective agreements which go beyond enterprise level; for the purposes of official approval consideration must be given not only to whether a collective labour agreement contains clauses violating the public-order standards of Acts Nos. 14250 and 23928, and also whether it complies with the following criteria: productivity, investment and the introduction of technology and vocational training systems (section 3 of Act No. 23545, section 6 of Act No. 25546 and section 3 of Decree No. 470/93).

In this respect, the Committee notes that the Government states that the question relating to the approval to be granted by the labour authorities, together with the contents of the collective agreements analysed prior to the granting of approval, should be dealt with in a draft legislative reform. Similarly, the Committee notes that the Government states that the influence of the State, through the granting of approval, has been significantly reduced as a result of the increase in collective bargaining at enterprise level, and that Decree No. 1334/91, which links wage negotiation to an increase in productivity is virtually revoked by Decree No. 470/93 for a wide range of conventional activities.

In these circumstances, the Committee expresses the hope that the draft reform on collective bargaining to which the Government refers will eliminate the provisions which place conditions on the official approval necessary from the administrative authorities for collective agreements going beyond enterprise level, and which are linked to criteria of productivity, investments and the introduction of technology and vocational training systems. The Committee requests the Government to send it a copy of the draft legislation with its next report.

The Committee observes that in December 1996 the Government issued Decree No. 1553/96 which authorizes the Ministry of Labour and Social Security to revoke, in part or in whole, the official approval of a collective agreement if the provisions thereof conflict with the legal rules issued after approval has been granted and if once the agreed period has expired the Ministry considers that the validity of the agreement no longer meets the requirements of section 4 of Act No. 14250. The Committee considers that this Decree confirms and expands the intervention of administrative authorities in collective bargaining, something which has already been criticized.

103. As regards Decree No. 1554/96, which empowers the Ministry of Labour and Social Security to determine the scope of collective bargaining, the Committee notes also that the Committee of Experts has commented on the conformity of this Decree with the provisions of Convention No. 98 [see observation from the Committee of Experts, op. cit.]. Therefore, the Committee refers to the commentary of the Committee of Experts as follows:

Furthermore, the Committee observes that in December 1996, Decree No. 1554/96 was also issued and provides that in cases where parties do not reach agreement on the sectors to be covered by negotiations of a collective agreement, this shall be decided by the Ministry of Labour, which must not exceed the minimum scope proposed. In the Committee's opinion, this implies that between a proposal for negotiation at the level of industry or branch of activity and a proposal for negotiation at enterprise level, in the absence of an agreement between the parties, a decision is taken within the enterprise sector and is imposed by the administrative authority concerned. In this respect, the Committee emphasizes that in drawing up the Convention, the principle of voluntary collective bargaining and the level of negotiation should not be conditioned or imposed by legislation or by a decision of the administrative authority, but should depend essentially on the will of the parties concerned.

104. As regards Decree No. 1555/96, which contains certain provisions regarding collective bargaining within the framework of small enterprises, the Committee notes that the National Chamber of Labour -- a judicial body at the appeal level -- declared sections 1 and 5 of the Decree in question unconstitutional. In this respect it should be highlighted that section 1 gives "the internal committee, staff delegates or similar bodies" the possibility of concluding collective agreements within the sphere of small enterprises. In this way, although it may be considered that a provision of this type does not in itself violate the principles of freedom of association, the Committee reminds the Government that the Workers' Representatives Convention, 1971 (No. 135) and the Collective Bargaining Convention, 1981 (No. 154), contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives in an enterprise is not used to undermine the position of the trade unions concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 787]. The Committee would point out to the Government the importance it attaches to this principle.

105. The Committee points out to the Government the above-mentioned principles and conclusions on Decrees Nos. 1553/96, 1554/96 and 1555/96 -- currently suspended -- in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and any collective agreements adopted pursuant to the decrees. Likewise, the Committee expresses the firm hope that the draft agreement for collective bargaining which the Government has indicated it is preparing with the participation of the social partners and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

The Committee's recommendations

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

The Committee would point out to the Government the principles formulated in the conclusions with respect to Decrees Nos. 1553/96, 1554/96 and 1555/96 in so far as they pose problems of conformity with Convention No. 98. The Committee requests the Government to keep it informed of developments concerning the decrees and the collective agreements adopted pursuant to the decrees.
The Committee expresses the firm hope that the draft agreement on collective bargaining which the Government has indicated it is preparing with the participation of the social partners, and the recent draft law on labour law reform, as adopted, will fully conform with the principles of freedom of association.

Annex

Decree No. 1553/96: The President of Argentina decrees that: Section 1. The Ministry of Labour and Social Security, after consultation with the parties, may revoke, in part or in whole, the registration of a collective labour agreement when:

its clauses conflict with legal standards laid down subsequent to registration;
one or more of its clauses have been judicially declared illegal;
the time period having lapsed, its validity no longer meets the requirements of section 4 of Act No. 14250 (Decree No. 108/88).

Section 2. Inform, publish, pass on to the National Directorate of the Official Registrar, and file.

Decree No. 1554/96: The President of Argentina decrees that: Section 1. Substitute section 4 of Decree No. 200/88 with the following: "Section 4. Within the legal time-limit laid down in section 4 of Act No. 23546 a hearing will be called to form the negotiating committee. During this the parties may agree to carry out their negotiations directly or through a civil servant who will be designated by the relevant authority. Once the negotiating committee is formed, each party shall clearly indicate its functional, personal and territorial sphere. Should disagreement arise, the Ministry of Labour and Social Security will define the sphere of negotiation in such a way that this covers and does not transgress the spheres that the parties' proposals superimpose." Section 2. Inform, publish, pass on to the National Directorate of the Official Registry and file.

Decree No. 1555/96: The President of Argentina decrees that: Section 1 (section 99 of Act No. 24467). The internal committee, staff delegates or similar bodies and an employer, group or association of employers may grant the start of collective bargaining for small enterprises. Likewise, lower level union bodies may request negotiation of a collective agreement for small enterprises. In both cases the higher level union body should begin negotiations within 15 days, and once this time-limit is passed the matter is understood to have been delegated to the lower level union body for negotiation. In all competing cases of collective agreements, the collective agreement within the sphere of small enterprises shall prevail. Section 2 (section 100 of Act No. 24467). Should any one of the parties signatory to a collective labour agreement request the start of collective bargaining on labour organization and wage structure for small enterprises, the Ministry of Labour and Social Security will convoke the parties to form a negotiating committee within 20 days of receiving the petition to this effect. In this case the petition does not imply denunciation of the Convention in force for the petitioner but rather the claim to adapt what is already in force to the provisions of Act No. 24467. Without prejudice to that previously established, the parties involved may denounce the applicable collective labour agreement under the terms of section 12 of Law No. 14250 (Decree No. 108/88) and request as an alternative: (a) agreement on a new general collective agreement which should contain one special chapter for small enterprises; (b) agreement on a collective labour agreement with a specific sphere for small enterprises. In both cases the Ministry of Labour and Social Security should arrange the start of negotiations within a time-limit similar to that laid down in the first paragraph of this section. Section 3 (section 101 of Act No. 24467). Should collective bargaining for small enterprises occur, the negotiating committee should include a representative from this sector. Section 4. During the proceedings of collective bargaining for small enterprises the procedures of Act No. 23546 will apply. Section 5. Once the time-limit of a general collective labour agreement expires its application within the sphere of small enterprises will remain for a time-limit of three months. Three months after the time-limit of a collective agreement for small enterprises has expired, labour conditions shall be governed by Act No. 20744 and other applicable legal standards. At no time will the clauses in a collective agreement for small enterprises, once expired, be considered as acquired rights or with legal effect remaining in labour relations. That which is laid down in paragraph 2 shall not be applicable should there already be a collective agreement with larger scope with a specific chapter for small enterprises in force. Section 6. Inform, publish, pass on to the National Directorate of the Official Registry and file.

Case No. 1939

Interim report

Complaint against the Government of Argentina
presented by
-- the Latin American Central of Workers (CLAT) and
-- the Central Association of Argentine Workers (CTA)

Allegations: Killing, detention, physical assaults and
death threats against trade unionists and trade union
leaders, break-ins in trade union premises and trade
unionists' homes, requests to withdraw legal recognition

107. The complaint in this case is contained in a communication from the Latin American Central of Workers (CLAT) dated 7 August 1997. Subsequently, in a communication dated 16 October 1997, the Central Association of Argentine Workers (CTA) supported the complaint and presented new allegations.

108. The Government sent its partial observations in a communications dated 25 February and 22 May 1998.

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

A. The complainants' allegations

110. In its communication of 7 August 1997, the Latin American Central of Workers (CLAT) states that the worrying rise in the unemployment rate has resulted in greater levels of social unrest in Argentina, and that in order to honour its commitments and obligations to the workers, trade union leaders have augmented the number of measures protesting against the national authorities which in turn, in spite of the international Conventions signed by Argentina, have led to a disturbing increase in acts of anti-union discrimination. Specifically, the CLAT alleges that in a number of provinces and regions, the following acts of violence have been committed:

Neuquén Province. In this region, which has been affected by very high levels of unemployment following the privatization of the National Oil Company (YPF) and the associated lay-offs, a number of trade union leaders affiliated to the Central Association of Argentine Workers (CTA) have been the victims of acts which directly violate the right to freedom of association. Specifically, during a demonstration organized on 12 April 1997 by workers in the region to protest against unemployment and the anti-social policies implemented by the Government, Ms. Teresa Rodríguez was shot to death. All the sources consulted state that she was killed by a shot fired by a police officer during the mass police action against the demonstrators. Following the death, the Association of State Workers (ATE) set up a human rights commission in its premises to monitor the investigation into the killing. On 15 March 1997, these premises were the target of an attack, and on the 24th of the same month, a group of unidentified persons fired shots at the front of the premises. On the night of 23 June 1997, a group of about 40 police officers broke into the homes of the following members of the Central Association of Argentine Workers (CTA) of Cutral-Co: Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero. The trade unionists were taken from their homes without being informed of where they were being taken. The unlawful nature of the detentions is aggravated by the fact that, according to the testimony of various members of the detainees' families, some of the police officers involved in the operation wore hoods, struck children and old people, and used a disproportionate degree of force. According to confirmed reports, the officers were not from the Cutral-Co police department and had no jurisdiction in that city. The detainees were held at different times in different unknown locations. Subsequently, one police department claimed to be holding them in detention but declined to let anyone see them. After about 12 hours, following intense protests, the district criminal court judge proceeded to clarify the legal situation of the detainees and charged three of them (Cristián Rodríguez, Sandro Botron and Beatriz Parra) with committing an offence contrary to article 213bis of the Penal Code which provides for the punishment of members of a legitimate association which commits unlawful acts. The charge was based solely on the "evidence" of statements made by a number of police officials who accused the trade unionists of having participated in protest demonstrations and obstructed roads in the district, to demand the implementation of the agreement signed by the Government giving work to unemployed people in the area. The gravity of this illegal act is also underlined by the fact that only one legitimate charge was brought against three of the detainees. Another irregularity in legal terms was the fact that the detainees were conditionally released after being warned not to participate in any march or demonstration during the following days. This is particularly significant, bearing in mind the fact that a protest march had been due to take place 24 hours later in protest against the failure of the Government to keep its promises to provide jobs for the unemployed.
Buenos Aires Province -- Lanús. From 13 June 1997 onwards there was a series of physical attacks and threats against delegates and workers of the Lanús section of the Association of State Workers (ATE): (1) on 13 June at approximately 2 o'clock as he was leaving his place of work (the Evita Hospital in Lanús), the ATE delegate in that establishment, Mr. Jorge Villalba, was stopped by three individuals, one of whom wore a balaclava while the other two also concealed their faces. They proceeded to abuse him verbally for his trade union activities and shot him in the left hand. Mr. Villalba had to undergo surgery, the results of which are still not known. The incident was reported to the first police precinct of Lanús; (2) on 23 June 1997 at approximately 10 a.m., the mother of Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús employed in the laboratory department of the Evita Hospital, received by telephone a death threat against her daughter. The incident was reported to Criminal Court No. 4 of the district of Lomas de Zamora; (3) on 26 June 1997 at about 8.10 a.m., Ms. Ana María Luguercho, an ATE delegate employed at the Arturo Melo Hospital, was stopped a few yards from her home by two men in a car of unknown make who detained and threatened her; (4) the ATE-Lanús delegate, Mr. Daniel Saavedra, received a death threat by telephone at his home; the caller appeared to know all the members of his family and details of his allegations. The incident was reported to the criminal court of the Lomas de Zamora Judicial Department.
Buenos Aires Province -- San Martín. The General Secretary of the ATE-San Martín, Mr. Víctor Bordiera, received an anonymous death threat by telephone at his home. The San Martín regional unit of the Buenos Aires Province police took note of the report of the incident and in turn reported it to the criminal court of the San Martín Judicial Department.
Buenos Aires Province -- General Rodríguez district. On 10 July 1997, an unsigned letter was received at the home of Mr. Ricardo Caffieri, containing threats against the Deputy General Delegate of ATE for General Rodríguez district. That night and the following day, he received similar threats by telephone at his home. The incident was reported by the General Secretary to the local police station, which immediately reported the matter to the district judge.
Attack on the home of the Deputy Secretary of the ATE (National-Federal Capital). At dawn on Saturday, 28 June 1997, the home of the Deputy Secretary of the ATE (National Branch), Mr. Juan González, came under attack. The attackers broke down the front door of the premises, which were not occupied by Mr. González at the time. The nature of the attack was evidenced by the fact that the attackers did not remove anything of value or indeed anything else from the premises. The operational capabilities of the attackers was illustrated by the fact that Mr. González lives right in the centre of the capital, only a block away from the district police station and close to the National Congress, in an area which enjoys a high level of police protection.
Comodoro Rivadavia and Goya districts. At dawn on 2 July 1997, unknown persons attacked the premises of the ATE (Comodoro Rivadavia section). The premises were looted. At the time of the attack, a police patrol was located less than 100 metres away but claims to have seen no suspicious activity, although the attackers removed all the furniture, computers and the fax machine from the premises. The premises of the Goya section of the ATE were also looted. In that incident, only minor articles were removed, fixtures were destroyed and graffiti drawn on the walls. Both cases are being investigated by the criminal courts of Comodoro Rivadavia and Goya districts.

111. In its communication dated 16 October 1997, the Central Association of Argentine Workers (CTA) alleges that the attacks against the freedom of association of the CTA and its members in Neuquén Province have intensified and that the Governor of the province has requested the withdrawal of legal recognition from the state employees' and teaching unions (ATE and ATEN) which were affiliated to the CTA. The complainants maintain that the request is clearly an attempt to retaliate against the trade unions for the protests and stoppages agreed by them following a government decision to cut wages by 20 per cent. The complainants explain that during these legitimate union activities, which were conducted in accordance with all the relevant legal provisions, there were isolated disturbances caused by trouble-making elements that had nothing to do with the organizations concerned.

B. The Government's reply

112. In its communications of 25 February and 22 May 1998, the Government states that, with regard to the killing of Ms. Teresa Rodríguez in Neuquén Province, an inquiry has been instituted by the Criminal Investigation Court of Cutral-Co, and that this investigation is at the preliminary stage of gathering evidence with a view to identifying the person or persons responsible for the killing and that police officer Hugo Alberto Rudolf has been indicted. Evidence from witnesses, ballistic evidence and evidence obtained from visual inspection of the scene have been obtained and the defence is presently appealing the indictment. Any new developments in the matter will be communicated immediately to the Committee.

113. The Government states that, with regard to the incidents reported to have taken place within the jurisdiction of Buenos Aires Province -- Lanús, Lujan and General San Martin -- information has been requested from the Under Secretariat of Labour of Buenos Aires Province (the competent body for labour matters within the province). According to that body, no complaints have been received from the victims or from any trade union. Nevertheless, the appropriate inquiries are being carried out with the police of Buenos Aires Province and any information will be communicated to the Committee as quickly as possible. Finally, the Government states that, as concerns the incidents taking place in the provinces of Santa Cruz and Neuquén, it is awaiting the information requested from the respective governments. As concerns Ana María Luguercho, the proceedings currently under way in Lanús are not related to the allegations.

C. The Committee's conclusions

114. The Committee notes that in the present case, the complainants allege the killing of a worker during a protest demonstration, the detention of trade unionists and break-ins at their homes, physical assaults and death threats against trade unionists, attacks on trade union headquarters and premises and on trade unionists' homes, and the request to withdraw legal recognition of a trade union in retaliation for demonstrations and stoppages.

115. Firstly, the Committee notes with concern the gravity of all the allegations presented and regrets that the Government has only provided partial information.

116. With regard to the allegation concerning the killing of the worker Ms. Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén Province in protest against unemployment, the Committee notes that the Government states that it has initiated judicial proceedings, a police official has been indicted in this matter and the indictment is being appealed.

117. The Committee deeply deplores the killing of Ms. Teresa Rodríguez and cannot refrain from noting that the Government confirms the involvement of the police in the incidents in which the worker concerned died. Under these circumstances, the Committee hopes that the judicial proceedings will clarify the incidents, apportion responsibility and impose sanctions on the person or persons responsible, and requests the Government to keep it informed of the outcome of these proceedings.

118. The Committee also recalls that in June 1996 it examined allegations of acts of violence against trade unionists who had participated in a protest demonstration in which a worker had also died. On that occasion, the Committee recalled that "the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 137]. The Committee requested the Government "to instruct the police authorities in future to guarantee the exercise of the right of trade unions to demonstrate without being the object of disproportionate measures or excessive violence" [see 304th Report, Case No. 1839, para. 55]. The Committee requests the Government in future to ensure that these principles are respected.

119. The Committee notes that the other allegations presented in this case refer specifically to: (1) the attacks that took place on 15 and 24 May 1997 on the union premises of ATE in which a human rights commission had been set up to monitor the investigation into the killing of Ms. Teresa Rodríguez; (2) the break-ins into unionists' homes and subsequent detention on 23 June 1997 of members of the Cutral-Co branch of the CTA (Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero) and the legal proceedings initiated against three of them (Rodríguez, Botrol and Parra); (3) the assault on ATE delegate Jorge Villalba, who was wounded in the left hand by a gunshot on 13 June 1997 in Lanús (the incident was reported to the Lanús police); (4) the death threat against Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús, on 23 June 1997 (a complaint was made to the judicial authorities); (5) the threat made on 26 June 1997 against Ms. Ana María Luguercho, ATE delegate at the Arturo Melo Hospital; (6) the death threat against the ATE-Lanús delegate, Daniel Saavedra (a complaint was made to the judicial authorities); (7) the death threat against Víctor Bordiera, General Secretary of ATE-San-Martín (a complaint was made to the judicial authorities); (8) the threat against Mr. Ricardo Caffieri, Deputy General Delegate of ATE-General Rodríguez district, on 10 July 1997 (a complaint was made to the judicial authorities); (9) the attack on the home of the Deputy Secretary of ATE (National Branch), Mr. Juan González; (10) the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya; and (11) the request by the Governor of Neuquén Province for the withdrawal of legal recognition from the state employees' and teaching unions (ATE and ATEN) which are affiliated to the CTA, as retaliation for the demonstrations and work stoppages carried out by those trade unions (the complainants attached to their complaint a resolution by the Ministry of Labour and Social Security dated 13 October 1997 which states that "the permanent legal service of the Ministry of Labour will proceed, in accordance with article 56 of Act 23551, to seek judicial annulment of the legal recognition granted to the trade union entity Sindicato de Trabajadores de la Educación de Neuquén").

120. In this context, the Committee regrets that the Government has not provided information on all the allegations, indicating only that information has been requested from the Under-Secretariat of Labour of Buenos Aires Province (that body has stated that no complaint has been received from the victims or from any trade union), that appropriate inquiries are being made with the police of Buenos Aires Province and that it has requested information from the governments of the provinces of Santa Cruz and Neuquén on the incidents which occurred there.

121. In these circumstances, the Committee urges the Government to provide its observations as quickly as possible on all the pending allegations (provinces of Buenos Aires -- Santa Cruz and Neuquén) stating expressly the status of the complaints before the police or judicial authorities to which reference has been made by the complainants. The Committee requests the Government to take the necessary measures to ensure protection for the CTA and ATE and for the trade unionists who have been threatened.

The Committee's recommendations

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

With regard to the allegation concerning the killing of Ms. Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén Province in protest against unemployment, the Committee hopes that the judicial proceedings currently in progress will clarify the facts, apportion responsibility and impose sanctions on the person or persons responsible, and requests the Government to keep it informed of the outcome of these proceedings.
Concerning the allegations relating to: (1) the attacks on 15 and 24 May 1997 on the ATE premises in Neuquén Province; (2) the break-ins at the homes and subsequent detention by the police on 23 June 1997 of members of the CTA of Cutral-Co (Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero) and the legal proceedings initiated against three of them (Rodríguez, Botron and Parra); (3) the assault on ATE delegate Mr. Jorge Villalba, on 13 June 1997 in Lanús; (4) the death threat made against Ms. Nélida Curto, a member of the Administrative Committee of ATE-Lanús, on 23 June 1997; (5) the threat against the ATE delegate at the Arturo Melo Hospital, Ms. Ana María Luguercho on 26 June 1997; (6) the death threat against the ATE-Lanús delegate, Mr. Daniel Saavedra; (7) the death threat against the General Secretary of ATE-San-Martín, Mr. Víctor Bordiera; (8) the threat against the Deputy General Delegate of ATE-General Rodríguez district, Mr. Ricardo Caffieri, on 10 July 1997; (9) the attack on the home of the Deputy Secretary of ATE (National Branch), Mr. Juan González; (10) the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya; and (11) the request by the Governor of Neuquén Province to withdraw legal recognition from the state employees' and teaching unions (ATE and ATEN), which are affiliated to the CTA, the Committee regrets that the Government has not provided full information on these allegations and urges it to provide its observations as quickly as possible on all the allegations, indicating expressly the status of the complaints before the police or judicial authorities to which the complainants refer. The Committee requests the Government to take the necessary measures to ensure protection for the CTA and ATE and for trade unionists who have been threatened.

Case No. 1957

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

Complaint against the Government of Bulgaria
presented by
the National Syndical Federation ("GMH")

Allegations: Eviction from trade union premises --
confiscation of property

123. The complaint in this case is contained in a communication from the National Syndical Federation ("GMH") dated 12 March 1998. The Government sent its observations in a communication of April 1998.

124. 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

125. In its communication of 12 March 1998, the National Syndical Federation ("GMH") alleges that the administrative authorities sealed the offices of "GMH" headquarters in Sofia on 15 July 1997, barring access to trade union leaders and members and confiscating the office equipment and documents belonging to the organization. The complainant states that "GMH" was founded in December 1985 and that the premises it had occupied had been granted by virtue of Resolution No. 506 of 24 November 1992 of the Council of Ministers.

126. The complainant adds that after the change of Government, the Council of Ministers issued Resolution No. 394 of 1 October 1993 which provided, without any reason and under political pressure, for the eviction of the "GMH" from its trade union premises and that in February 1994 the Supreme Court of Bulgaria ruled that the Government had the right to dispose of the trade union premises, but that it realized that this right violated the trade union rights of the organization. The "GMH" states that the Sofia administration subsequently issued Ordinance No. RD-15-207 in July 1997, upholding the provisions of Resolution No. 394 of the Council of Ministers, but that none of these decisions had indicated where the organization's headquarters would be located. Lastly, the complainant alleges that the administrative authorities issued an order for the enforcement of Ordinance No. RD-15-207 only three days after it was promulgated, which meant that the organization was unable to remove its equipment and documents in order to carry out its activities.

B. The Government's reply

127. In its communication, the Government states that this is a case of deprivation of the illegal use of state property by the "GMH". The Government indicates that Resolution No. 506 of 1992 of the Council of Ministers, by virtue of which the premises, which belonged to the State, had been placed at the disposal of the "GMH", had been revoked by Resolution No. 394 of 1993 of the Council of Ministers, as these premises belong to the State and may not be placed at the disposal of trade union organizations. This Resolution is in conformity with the State Property Law and its provisions concerning the acquisition, maintenance and use of state property. The Government adds that an appeal had been lodged with the Supreme Court against Resolution No. 394 of 1993, but that it was denied by a Decision dated 24 February 1993.

128. The Government points out that Ordinance No. RD-13-266 of 4 September 1996 of the Sofia District Administration, ordering the vacation of the premises occupied by the "GMH" Federation, is a logical consequence of the previous Resolutions mentioned above. The Government states that despite the Resolution of the Council of Ministers, the Decision of the Supreme Court and the Ordinance of the Sofia District Administration, the Federation had continued to occupy the premises illegally. The Government points out that the last Ordinance, No. RD-15-207 of 11 July 1997, concerning the eviction had been enforced on 15 July 1997. The Government refutes the statement of the "GMH" Federation to the effect that it had had only three days to organize the removal, since the Ordinance of 1997 had been issued pursuant to the earlier Ordinance of September 1996.

C. The Committee's conclusions

129. The Committee observes that in this case the complainant alleges that in July 1997 the administrative authorities sealed the trade union premises of its headquarters in Sofia, barring access to trade union leaders and members and confiscating the equipment and documents of the organization. The Committee observes further that the complainant explains that it had been using the premises since 1992, authorization having been granted by the Government, and that in 1993, without any reason and under political pressure, the Council of Ministers had ordered its eviction, which was finally enforced in July 1997.

130. The Committee notes that the Government states that: (i) the Resolution of the Council of Ministers of 1992 granting the use of the premises to the complainant organization had been revoked by the same Council of Ministers, as the premises are state property and therefore cannot be placed at the disposal of trade union organizations, under the terms of the State Property Law; (ii) the Supreme Court of Bulgaria had denied an appeal lodged by the complainant in this respect (the complainant admits that the judicial body had ruled that the Government had the right to dispose of the trade union premises); (iii) in 1996, the Sofia District Administration had issued an order for the vacation of the premises, pursuant to the provisions enacted by the Council of Ministers; and (iv) given that the National Syndical Federation "GMH" had continued to occupy the premises, on 11 July 1997 a new eviction order had been issued and was enforced on 15 July 1997.

131. Concerning the vacation of the premises that the complainant had occupied in the city of Sofia, the Committee observes that the versions of the complainant and the Government concerning the reasons for the eviction order diverged: the complainant cites political pressures on the Council of Ministers, while the Government maintains that it had been intended to comply with the provisions of national legislation concerning state property. Whatever the case, the Committee observes that both parties admit that the trade union premises occupied by the National Syndical Federation "GMH" are the property of the State and that the highest judicial authority in the country has ruled that the Government had the right to dispose of these premises. In these circumstances, taking account of the fact that the complainant has enjoyed the use of premises belonging to the State as its central headquarters for a considerable time (1992-1997) and that being denied the use thereof has affected the normal conduct of its activities, the Committee invites the Government to consider the possibility, taking into account the representativeness of the complainant, of granting "GMH" premises in the city of Sofia where it may set up its headquarters.

132. As regards the allegation concerning the confiscation of office equipment and documentation of the complainant organization during the eviction from the trade union premises which it had occupied, the Committee notes with regret that the Government has not sent observations in this respect, and therefore draws its attention to the fact that confiscation of trade union property by the authorities, without a court order, constitutes an infringement of the right of trade unions to own property and undue interference in trade unions' activities, contrary to the principles of freedom of association. In these circumstances, the Committee requests the Government to take the necessary steps without delay to ensure that all of the equipment and documents confiscated from the complainant are returned to it, and to keep it informed of developments in this respect.

The Committee's recommendations

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

In view of the fact that the complainant has been deprived of the use of premises that it had enjoyed from 1992 to 1997, the Committee invites the Government to consider the possibility, taking into account the representativeness of the National Syndical Federation "GMH", of granting the complainant premises in the city of Sofia in which the organization may set up its headquarters.
Drawing the Government's attention to the fact that the confiscation of trade union property by the authorities without a court order constitutes an infringement of the right of trade unions to own property and undue interference in their activities, contrary to the principles of freedom of association, the Committee requests the Government to take the necessary steps without delay to ensure that all of the equipment and documents confiscated from the complainant organization are returned to it, and to keep it informed of developments in this respect.

Case No. 1928

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

Complaint against the Government of Canada (Manitoba)
presented by
-- Education International (EI)
-- the Canadian Teachers' Federation and
-- the Manitoba Teachers' Society (MTS)

Allegations: Denial of the right of teachers to
bargain collectively, legislative interference with the
independence of arbitration

134. Education International (EI), the Canadian Teachers' Federation and the Manitoba Teachers' Society (MTS) presented a complaint of violations of freedom of association against the Government of Canada (Manitoba) in a communication dated 28 May 1997.

135. In response to the allegations, in a communication dated 10 February 1998, the federal Government transmitted the reply of the Government of the Province of Manitoba. Further information was supplied by the Government in a communication of 2 March 1998.

136. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

137. In their communication of 28 May 1997, the EI, the Canadian Teachers' Federation and the MTS allege that the recent amendments to the Public Schools Act through the adoption of the Public Schools Amendment Act ("the Act") violate ILO standards and principles concerning freedom of association and collective bargaining. In particular, the complainants allege that the Act interferes with the independence of interest arbitrators and the integrity of the arbitration process, thus contravening 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).

138. The complainants take issue with three aspects of the recent amendments. First, the removal of certain matters from the jurisdiction of interest arbitrators; second, the requirement that interest arbitrators take into account specific factors including the ability to pay; finally, the creation of a new mediation/arbitration system.

139. As background, the complainants note that in the Province of Manitoba, binding interest arbitration has been substituted by statute for the right to strike for public school teachers (Public Schools Act), as well as police officers in Winnipeg (City of Winnipeg Act), and some provincial civil servants (Civil Service Act). Labour relations in general is governed by the Labour Relations Act.

140. Collective bargaining concerning public school teachers is carried out at the level of the school division or school district. Teachers' associations in each school division or district negotiate collective agreements with their respective employers, resulting in a wide variety of collective agreements.

141. The complainants ask that all of the amendments to the Public Schools Act be viewed in the context of recent Manitoba legislation affecting the wages of public school teachers and other employees in the public sector. The Public Sector Reduced Work Week and Compensation Management Act ("Bill 22") allowed public sector employers, including school divisions/districts, to override collective agreements by imposing unpaid days off. During the 1993-94 school year, public school teachers lost approximately $6,631,366 (CDN) as a result of Bill 22, and $6,802,378 in 1994-95. The effect of the new amendments upon teachers is compounded since their standard of living has already been eroded by Bill 22. Following upon Bill 22, the amendments can only serve to further prejudice and destabilize the labour relation climate in respect of public school teachers in Manitoba. Furthermore, the amendments are of a permanent nature, rather than a temporary response to an economic crisis.

142. Regarding Manitoba's present economic situation, the complainants contend that by the government of Manitoba's own admission, the economy is fundamentally healthy and growing. The complainants attached a copy of "the 1997 Manitoba Budget Address" in support.

Jurisdiction of interest arbitrators

143. Prior to the amendments, the Public Schools Act contained no restrictions on the matters that an interest arbitrator could decide. The arbitrator was required to decide the manner in which all matters in dispute between the parties had to be settled. Pursuant to the amendments, certain matters are excluded from the arbitrator's jurisdiction. The relevant provision of the Act reads as follows:

Notwithstanding any other provision of this Act, the following matters shall not be referred for arbitration and shall not be considered by the arbitrator or included in the arbitrator's award:

the selection, appointment, assignment and transfer of teachers and principals;
the method for evaluating the performance of teachers and principals;
the size of classes in schools;
the scheduling of recesses and the midday break.

144. The Act also contains a new provision that, with respect to the matters not referable to arbitration, "a school board shall act reasonably, fairly and in good faith in administering its policies and practices ...", and a failure to comply may be the subject of a grievance under the collective agreement.

145. The complainants submit that while school divisions/districts may voluntarily agree to include provisions in collective agreements dealing with the excluded matters, interest arbitrators no longer have jurisdiction to impose such provisions. The practical effect of this situation is that school divisions/districts have statutory carte blanche to impose their will upon teachers' associations concerning the excluded matters. Teachers' associations have no recourse: they cannot strike, and now they cannot even rely upon interest arbitration. The complainants contend that this is not merely a theoretical situation since several collective agreements currently in effect contain detailed provisions dealing with at least some of the excluded matters, for example, the transfer of teachers. The complainants attached as an annex to the complaint a collective agreement between the Winnipeg School Division No. 1 and the Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, article 26 of which is entitled "Transfer".

146. The unilateral exclusion from collective bargaining of the items listed in the Act is an unwarranted interference in the collective bargaining process, according to the complainants. Furthermore, it is not a temporary measure or a measure designed in response to an economic crisis.

Factors to be taken into account by interest arbitrators

147. Under the old Act, there were no restrictions on the matters which interest arbitrators could take into account in dealing with financial provisions of collective agreements. The amended Act contains new provisions (section 129(3) and (4)) stating --

The arbitrator shall, in respect of matters that might reasonably be expected to have a financial effect on the school division or school district, base his or her decision primarily on the school division's or school district's ability to pay, as determined by its current revenues, including the funding received from the government, and the Government of Canada, and its taxation revenue.

... the arbitrator shall also consider the following factors within the context of the school division's or school district's ability to pay:

the nature and type of services that the school division or school district may have to reduce in light of the decision or award, if the current revenues of the school division or school district are not increased;
the current economic situation in Manitoba and in the school division or school district;
a comparison between the terms and conditions of employment of the teachers in the school division or school district and those of comparable employees in the public and private sectors, with primary consideration given to comparable employees in the school division or school district or in the region of the province in which the school division or school district is located;
the need of the school division or school district to recruit and retain qualified teachers.

148. The complainants state that pursuant to the Public Schools Act, school divisions and school districts in Manitoba receive most of their revenue from two sources: grants from the government of Manitoba, and education support levies (in essence taxes added to municipal property taxes). For all practical purposes, school divisions/districts have the power to control their revenues by raising and lowering taxes. The current economic situation in Manitoba may be considered when deciding to raise or lower taxes; however, this is essentially a political decision. The complainants submit that the new requirements imposed upon interest arbitrators through the Act require them to consider political factors, balance political imperatives and make political decisions, thus undermining their independence and impartiality. Decisions not to raise taxes should be made by elected politicians rather than independent, impartial arbitrators.

Creation of a new mediation/arbitration system

149. Finally, the Act contains new provisions in respect of conciliation, arbitration and mediation. The old Act contained provisions for conciliation and arbitration between teachers' associations and school divisions. Either party could request the Minister of Education and Training to appoint a conciliation officer "to confer with the parties and assist them to conclude a collective agreement or a renewal or revision thereof", and the provisions of the Labour Relations Act dealing with conciliation officers were applicable. Pursuant to the Labour Relations Act, conciliation officers are to be paid from Manitoba's Consolidated Fund (public revenue). Under the amended Act, the parties must now jointly request the Minister to appoint a conciliation officer, and the remuneration and expenses of the officer are to be shared equally by the parties. The complainants submit that this puts public school teachers in a less favourable position than all other unionized employees in Manitoba who continue to be governed by the conciliation provisions of the Labour Relations Act.

150. Under the old Act, where a conciliation officer failed to bring about a collective agreement, either party could request the Minister to appoint a Board of Arbitration. The Minister was also entitled to appoint the Board on his or her own initiative. Nothing said or done in the course of efforts to settle a dispute through conciliation was admissible in evidence in any proceeding before the Board of Arbitration. Pursuant to the amendments, either party may request the Minister to appoint a mediator-arbitrator to confer with the parties and endeavour to assist them in concluding a collective agreement. If the parties are unable to reach an agreement through mediation, either party or the Minister may then require the mediator-arbitrator to effect a collective agreement through arbitration.

151. In the Act, there are no provisions distinguishing between the mediator-arbitrator's mediation role and arbitration role regarding admissibility of evidence. Information and submissions provided to the mediator-arbitrator during mediation may have an effect on the outcome of the arbitration, thus undermining the confidence of the parties and, therefore, violating the Labour Relations (Public Service) Convention, 1978 (No. 151). In addition, the remuneration and expenses of the mediator-arbitrator are to be shared equally by the parties, in contrast with the provisions of the Labour Relations Act requiring mediators to be paid in three equal portions by the two parties and the Consolidated Fund. In effect, public school teachers are again placed in a less favourable position than all other unionized employees in Manitoba. The complainants submit that the amended Act thus violates the Labour Relations (Public Service) Convention, 1978 (No. 151), by failing to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment. Nor does the amended Act promote collective bargaining as required by the Collective Bargaining Convention, 1981 (No. 154).

152. The complainants further submit that the amended Act violates the principle that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings, since as a result of the amendments a prohibition on strikes is now combined with an arbitration system that is neither adequate nor impartial.

B. The Government's reply

153. Generally, it is the Government's position that the action which it has taken is entirely consistent with the fundamental principles of the International Labour Organization.

154. The Government takes issue with the complainants' suggestion that the recent amendments were primarily the outgrowth of the economic retrenchment experienced by the Canadian economy generally, and the Manitoban economy in particular, in the early and middle 1990s. The Government states that it would be simplistic to characterize these amendments as being economically driven. Rather, Manitoba's Department of Education and Training had for years been concerned about the effectiveness of the collective bargaining process within the public school system. For example, as of September 1997, 13 school divisions and teachers' associations were still without a new contract for the period beginning 1 January 1995. The amendments which are the subject of the complaint were implemented to create a better collective bargaining process and environment, not simply a cheaper one. The present legislation was not in essence wage restraint legislation.

155. As background to the amendments, the Government states that the collective bargaining process for public school teachers has been in place for some 40 years. In 1992, after public hearings, the Panel on Education Legislation Reform recommended that the collective bargaining provisions of the Public Schools Act be updated. A committee which included representatives from the Manitoba Association of School Trustees (MAST) and MTS was established to investigate collective bargaining issues. As this committee proved ineffective, it was replaced in 1995 with the Teacher Collective Bargaining and Compensation Review Committee, composed of two government members and the Deputy Minister of Education. The Committee consulted extensively with the public and stakeholders before making recommendations upon which, broadly speaking, the disputed amendments were based. The Committee was guided by the following criteria:

the need to safeguard the opportunity for local input and participation;
the need to reduce costs and time associated with the bargaining process;
the need to effect efficient budget planning;
the need to preserve and guarantee uninterrupted learning for students;
the need to balance adequately employer-employee rights and responsibilities;
the need to address affordability.

156. The Government agrees that collective bargaining by public school teachers is carried out at the school division/district level. Nominally these negotiations are carried out by teachers' associations in each division of the district; however, the teachers' associations rely heavily upon their union, the MTS, to provide research and other support for bargaining and, similarly, the school divisions rely on their central body, MAST. Due to this structure, there are many collective agreements in place in the province (approximately 57); however, contrary to the assertion of the complainants, this has not resulted, according to the Government, in a wide variety in the substantive content of these collective agreements. There is little variability in either salary, benefits or working conditions since "pattern bargaining" is the tendency. There are some relatively minor variances in some of the collective agreements, but only in a limited number of areas.

157. The Government agrees that the amended legislation contains the new categories of provisions described by the complainants.

Jurisdiction of interest arbitrators

158. The Government acknowledges that unlike the old legislation, the amendments stipulate that certain enumerated items are not to be the subject of arbitration, though the parties are still able to address them through negotiation if they choose. This was added because of the significant restraints that some recent arbitration awards were placing on the ability of local authorities to meet their obligations to their electorate and the students under their care. The Panel on Education Legislation Reform indicated specifically that in the course of its public consultations there was no support for including within the negotiation process certain issues such as "selection, appointment, assignment, evaluation of teachers; duties that teachers are to perform; the number, kind, grades and descriptions of schools; courses of study and programmes of study; class size, pupil-teacher ratios, preparation time or number of classes; hours or days of the school year".

159. The Government agrees that the amended legislation contains a provision requiring the school board to act reasonably, fairly and in good faith in administering its policies relating to the matters that have been statutorily excluded from arbitration. If it fails to do so, this can be the subject of a grievance. The Government submits that this is a very significant constraint upon the employing boards. Furthermore, the legislation does not preclude the school division/district from arriving at a consensual agreement with the teachers with respect to the excluded items.

160. The Government states that few, if any, collective agreements deal with class size or scheduling of recesses/midday break. A growing number of contracts are by agreement addressing the midday break to confirm that teachers are to have an uninterrupted break, usually of 55 minutes, between 11:00 and 14:00. There are a few agreements that have covered the area of evaluations. Many collective agreements recognize management rights with respect to teachers' assignments, but include provisions requiring "fair notice" to be given with respect to a change of assignment.

Factors to be taken into account by interest arbitrators

161. While the Act was not, in essence, wage restraint legislation, the Government states that Manitoba's financial experience earlier this decade is relevant to one issue arising out of the disputed amendments, namely the inclusion of "ability to pay" as a factor to be considered by the arbitrators. Manitoba's school boards represent a third level of government, and within each school division/district, the educational system is administered by elected trustees. The school system is financed in significant measure through local taxation, the rates of which are set by the school boards. However, the trustees had difficulty in managing school division affairs, not least because the largest portion of their budgets which were for teachers' salaries are externally controlled through the collective bargaining process, and many operational functions were increasingly becoming the subject of negotiation and ultimately binding arbitration. The result was, and continues to be, spiralling levels of local taxation at a time when many of those local economies were in a state of financial deterioration. This was further exacerbated when more and more non-salary items became the subject of binding awards, making it more difficult for the Trustees to manage division affairs in a flexible and responsible manner while containing expenditures within acceptable budgets.

162. The Government states that school divisions are often forced into probable tax increases where an arbitrator has chosen to regard pay increases granted in other divisions as justification for a similar increase, despite the differing economic situation which may exist within the boundaries of that school division. When this happens, the employing division is left with a stark choice: raise taxes, or if the economic situation does not otherwise permit it to meet the increased costs incidental to the award, eliminate programmes to the detriment of its pupils.

163. The Government submits that arbitrators are not being asked to make political decisions, simply to take into account local financial realities along with other factors such as terms and conditions in other school divisions/districts, the need of the school division to recruit and retain qualified teachers, and what comparably trained salaried persons other than teachers would earn in the same geographical area. Some of these considerations on their face are likely to be helpful to teachers. The last two factors listed were in fact added to the Act in response to MTS representations. It is submitted that even the financial factors are neutral, since while they may make it more difficult to win significant wage increases in difficult economic times, it would have the opposite effect when local economies improve. With regard to the allegation that the arbitrator's role under the amendments can be characterized as "political", the Government submits that it was no less political under the old Act, since arbitrators could have a significant impact on shaping the local school system without acquiring any form of responsibility for those consequences.

Creation of a new mediation/arbitration system

164. The Government agrees with the complainants' description of the conciliation system under the old Act. However, this system, it submits, was seen by the parties as a mere pro forma procedure on the road to arbitration. Conciliation officers rarely succeeded in bringing the parties to agreement, and the process did not appear to be taken very seriously by either MTS or MAST.

165. It is agreed that prior to the Act, all conciliation costs were paid by the Government. Now the costs, on a schedule determined by the Government, are paid equally by the parties. This is an attempt to encourage both teachers and employers to take the conciliation process seriously.

166. Regarding the costs of the mediator-arbitrator, the Government submits that in paying only half the costs of a single mediator-arbitrator the system will in fact be less expensive to the parties overall than paying for an arbitration board. The Government further states that, although the Minister of Education and Training has the right to appoint an arbitrator, this power has never been used, and would only be used if there were a deadlock in negotiations and an absolute refusal by the parties to use the statutory process. The Government notes, however, that the Minister appoints the arbitrator from a list maintained by either the Collective Agreement Board or by the Manitoba Labour Board, these lists consisting of names acceptable to labour and management. In July 1997, the Minister wrote to both MTS and MAST providing them with the names currently on the Collective Agreement Board roster, and encouraging them to nominate other individuals who either have, or could acquire, an expertise in this area. MTS has not yet responded to this invitation.

167. Although the Act does not distinguish between the mediator-arbitrator's mediation and arbitration roles with respect to admissibility of evidence, it is open to the parties to agree from the outset that all mediation discussions will be without prejudice. In addition, the option remains for the parties to be assisted by a conciliator, and if this fails, to have a different person as an arbitrator, rather than necessarily invoking the mediator-arbitrator model.

168. The Government submits that the amended procedures continue to give MTS the ability to bargain effectively on behalf of teachers, and there is no reason to believe that it will be any less impartial than under the old Act. It further contends that the procedures provide a framework for "adequate, impartial and speedy conciliation and arbitration" that is at the at the heart of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Similarly, the Government denies that the amendments at issue violate the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The collective bargaining process for teachers has not only been kept in place, it has been enhanced by making conciliation and arbitration faster and ultimately less costly to the parties. Similarly, by improving what has become a slow and cumbersome conciliation/arbitration model, the Government is encouraging and promoting the full development and utilization of machinery for negotiation of terms and conditions of employment, as stipulated in the Labour Relations (Public Service) Convention, 1978 (No. 151).

169. The Government further submits that there has been considerable prior consultation with respect to the amendments at issue, in keeping with the Collective Bargaining Convention, 1981 (No. 154). The 1992 Panel on Education Legislation Reform held extensive public hearings, and the first committee established as a result of the Panel's report consisted largely of stakeholders, including MTS and MAST. Because of their inability to reach a consensus, the Teacher Collective Bargaining and Compensation Committee was established, which held 11 public meetings and a special meeting to hear the official positions of MTS and MAST. Finally, after the legislation in question had been introduced into the Legislative Assembly, and pursuant to Manitoba's legislative procedures, there were extensive public hearings at the public committee stage where all the amendments were discussed and in fact modified in certain significant respects at the request of MTS representatives prior to the final passage of the Bill. The Government states that it is prepared to continue the consultative process and revisit any areas where problems can be identified in the legislative structure. The Government states, however, that for a true consultative process to work, all the parties must be prepared to enter into dialogue and consider reasonable compromises, and contends that MTS has not always approached the issues at hand in such a manner.

170. The Government submits in conclusion that the amendments, when viewed in context, are not only reasonable, but will, given a good faith approach by the stakeholders, prove to be an improvement to collective bargaining for Manitoba teachers and trustees for years to come.

C. The Committee's conclusions

171. The Committee notes that the allegations of violations of freedom of association in this case concern three categories of recent amendments to the Public Schools Act in the Province of Manitoba. First, the removal of certain matters from the jurisdiction of interest arbitrators, in a system where binding interest arbitration has been statutorily substituted for the right to strike for public school teachers. Secondly, in reaching a decision, the interest arbitrators are to take into account specific factors, including ability to pay. Thirdly, the former conciliation and arbitration system has been replaced by a combined mediation/arbitration system. The complainants allege that as a result of these changes the independence of the arbitrators and the integrity of the arbitration process has been interfered with, thus contravening ILO standards and principles on freedom of association.

172. The Committee notes that the Government does not characterize these amendments as a temporary response to serious financial and budgetary difficulties facing the Government, but as a means of creating a better collective bargaining process and environment. The Committee further notes that, while those in the education sector should be entitled to exercise the right to strike if they so wish [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 545], the complainants do not seek to question the validity of the compulsory arbitration system per se, and thus the denial of the right to strike as a means of defending their economic and social interests, but rather object to certain changes in the arbitration system.

Jurisdiction of interest arbitrators

173. The Committee notes that pursuant to the recent amendments to the Public Schools Act, in settling an interest dispute, an arbitrator no longer has jurisdiction to make an award involving the selection, appointment, assignment and transfer of teachers and principals; the method for evaluating the performance of teachers and principals; the size of classes in schools; and the scheduling of recesses and the midday break. While these matters have been excluded from the arbitrators' jurisdiction, a responsibility has been placed on school boards to administer their policies and practices regarding the excluded matters reasonably, fairly and in good faith.

174. According to the Government, these amendments were adopted because of the significant restraints that some recent arbitration awards were placing on local authorities. The nature of these restraints is not specified. A further reason put forward is that according to a report published in 1992, in the course of public consultations, there was no support for including in the negotiation process the topics at issue. The Government also contends that few collective agreements deal with the enumerated subjects in any event.

175. The Committee recalls firstly that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom they represent [see Digest, op. cit., para. 782]. The Committee has previously noted in particular the importance of promoting collective bargaining in the education sector [see Digest, op. cit., para. 804]. Secondly, regarding the subject-matter of collective bargaining, the Committee recalls the view of the Fact-Finding and Conciliation Commission on Freedom of Association that "there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation" [see Digest, op. cit., para. 812]. Determining the broad lines of educational policy has been given as an example of a matter that can be excluded from collective bargaining; however, there are other matters that deal primarily with questions relating to conditions of employment, and they should not be regarded as falling outside the scope of collective bargaining [see Digest, op. cit., paras. 812-813]. The Committee considers that, with the possible exception of the size of classes in schools, the subjects that have been excluded from the jurisdiction of the arbitrators are clearly related to conditions of employment, and thus in the context of the Manitoban system of determining terms and conditions of employment in the education sector, these subjects should be within the arbitrator's jurisdiction. While not necessarily prevalent in the collective agreements for public school teachers in Manitoba, these subjects have been included in some agreements; in any event, they raise important issues for workers that are finding their way more and more in collective agreements generally. Regarding the issue of the selection and appointment of teachers and principals, the Committee considers that the establishment of procedures in this regard should be included within the scope of issues covered by arbitration, whereas specific cases of selection or appointment may be excluded. With respect to class size, the Committee acknowledges that, while this subject may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy. If the Government considers that subjects such as class size should be determined outside the process of collective bargaining, the Committee requests the Government to ensure that the teachers' associations concerned are adequately consulted prior to the development and implementation of policies in this regard.

176. The Committee notes the Government's assertion that there is no violation since the parties remain free to voluntarily negotiate regarding these issues and the good faith provision is a significant restraint upon the employing bodies. However, the Committee observes that where workers' organizations are not permitted to resort to any means of pressure to promote and defend their position in collective bargaining, effective collective bargaining may be inhibited. In the Committee's view, the provisions requiring the Government to act reasonably, fairly and in good faith in administering its policies relating to the matters that have been statutorily excluded, with the grievance procedure being available in case of an alleged breach, cannot be considered to be tantamount to collective bargaining, since the Government retains the power to act unilaterally in these matters, and it is not a sufficient compensatory guarantee for the restriction on the right to strike. The Committee recalls that the right to strike is one of the fundamental means through which workers and their organizations may promote and defend their occupational interests. This right can only be restricted in essential services or with respect to public employees who act as agents of the public authorities, and workers in the education sector do not fall within either of these categories [see Digest, op. cit., paras. 474-475, 536; see also 278th Report, Case No. 1570 (Philippines), paras. 165-166]. In the present case, the complainants do not contest the denial of the right to strike; however, in exchange for accepting the denial of this important means of defending their claims in collective bargaining, adequate guarantees should be provided, including adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage [see Digest, op. cit., para. 547]. Since with respect to the enumerated subjects interest arbitration is not permitted, the workers and their organizations are left with no effective means of promoting the claims made in negotiations and no adequate compensatory guarantees.

177. The Committee accordingly urges the Government to take steps to have the amendments to the Public Schools Act of Manitoba that circumscribe the jurisdiction of the interest arbitrators repealed and to keep it informed in this regard. The Committee draws this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.

Factors to be taken into account by interest arbitrators

178. The Committee notes that the Public Schools Act has been further amended to oblige the interest arbitrators, when dealing with a matter that may reasonably be expected to have a financial effect on the division or district, to base his or her decision primarily on the school division's/district's "ability to pay", as determined by its current revenues. A number of factors are then enumerated which are to be "considered" by the arbitrator within the context of the school division's/district's ability to pay.

179. The Committee notes that, despite the Government's denial, these amendments appear to be an attempt to contain the level of wages in particular within certain budgetary limits, though some flexibility is maintained through a balancing of the enumerated factors such as the need of the school division/district to recruit and retain qualified teachers. The Committee considers that while financial considerations may be required to be taken into account, by mandating the arbitrator to base his or her decision "primarily" on the ability to pay, the legislation goes beyond what is acceptable under the principles of freedom of association. The Committee, therefore, requests the Government to amend the legislation, in consultation with the workers' organizations concerned, and to keep it informed of the developments in this regard. The Committee draws this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.

Creation of a new mediation/arbitration system

180. The Committee notes that formerly under the Public Schools Act, in the negotiation of a collective agreement, either party could trigger a conciliation procedure, which was funded from public revenue. If conciliation failed, either party could request the Minister to appoint a Board of Arbitration. Pursuant to the amendments, if conciliation is to take place, the parties must jointly request the assistance of a conciliation officer, and they must share equally the remuneration and expenses of that officer. In essence, the procedure for conciliation and then arbitration by a board has been substituted by a system of mediation/arbitration. Now either party may request the Minister to appoint a mediator-arbitrator to assist them in concluding a collective agreement. If mediation fails, then, at the request of either party or the Minister, the same person is to effect a collective agreement through arbitration.

181. As stated above, the Committee has accepted that restrictions on the right to strike in the context of this case should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings. The complainants submit that the new mediation-arbitration system is neither adequate nor impartial since conciliation must be initiated jointly, and now must be paid for jointly; because the mediator-arbitrator's mediation and arbitration roles are not sufficiently independent; and because the parties are jointly responsible for the remuneration and expenses of the mediator-arbitrator. The complainants also suggest that the revision of the system was not preceded by adequate consultation with the parties concerned.

182. Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee concludes that, provided the costs are reasonable, and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services, there has not been a violation of freedom of association on this basis. Furthermore, the Committee takes no position as to the desirability of conciliation over mediation as both are means of assisting the parties in voluntarily reaching an agreement. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial. In mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 549].

183. Regarding the complainants' final concern with respect to the lack of consultation in the modification of the arbitration system, the Committee recalls that where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, and the arbitration system is an extension of the bargaining structure in this case, it is particularly important that there be an adequate consultation process, whereby all objectives can be discussed by the parties concerned. Such consultation is to be undertaken in good faith and both parties are to have all the information necessary to make an informed decision [see 299th Report, Case No. 1802 (Canada/Nova Scotia), para. 281; 300th Report, Case No. 1806 (Canada/Yukon), para. 126]. The Committee notes that while there were a number of public meetings regarding the reform of education legislation, only one meeting was held to hear the official positions of MTS and MAST. Furthermore, although MTS appears to have had some success in having a few modifications made to the Act once it had been introduced into the Legislative Assembly, this involvement comes very late in the procedure, and cannot be considered to be a substitute for good faith consultations in the development of a policy to alter the bargaining structure. The Committee requests the Government to ensure in future that consultations in good faith are undertaken in such circumstances that the parties have all the information necessary to make informed proposals and decisions.

The Committee's recommendations

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

The Committee urges the Government to take steps to have the amendments to the Public Schools Act of Manitoba that circumscribe the jurisdiction of the interest arbitrators repealed and to keep it informed in this regard.
The Committee requests the Government, if it considers that subjects such as class size should be determined outside the process of collective bargaining, to ensure that the teachers' associations concerned are adequately consulted prior to the development and implementation of policies in this regard.
The Committee requests the Government to ensure in future that consultations in good faith are undertaken regarding any changes in the bargaining structure, in such circumstances that the parties have all the information necessary to make informed proposals and decisions.
The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1943

Interim report

Complaint against the Government of Canada (Ontario)
presented by
-- the Canadian Labour Congress (CLC)
-- the Service Employees International Union, Local 204 (SEIU) and
-- the Ontario Federation of Labour

Allegations: Governmental interference in
arbitration and labour tribunals

185. The Canadian Labour Congress (CLC), the Service Employees International Union, Local 204 (SEIU), and the Ontario Federation of Labour presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 12 November 1997.

186. In response to the allegations, in a communication dated 23 April 1998, the federal Government transmitted the reply of the Government of the Province of Ontario.

187. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

188. The complaint concerns legislation dealing with compulsory interest arbitration in specific areas of the public sector: the Savings and Restructuring Act, 1996 (Bill 26), in particular Schedule Q; the Public Sector Transition Stability Act, 1997 (Bill 136), in particular Schedule A which is the Public Sector Dispute Resolution Act, 1997; the Social Contract Act, 1993 (Bill 48). In their communication of 12 November 1997, the CLC, SEIU and Ontario Federation of Labour allege that the legislation as well as the continued absence of an independent body to appoint interest arbitrators in Ontario, interfere with the independence of interest arbitrators and the integrity of the arbitration process, thus contravening 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).

Schedule Q to the Savings and Restructuring Act (Bill 26)
and the Public Sector Dispute Resolution Act (Bill 136)

189. The complainants submit that the imposition of statutory criteria on interest arbitrators pursuant to Bill 26 and Bill 136 interferes with the public sector bargaining process and with arbitrators in Ontario.

190. The complainants state that over 250,000 unionized employees fall within the scope of Schedule Q of Bill 26, which deals with the resolution of disputes in the hospital, police, fire and school board sectors. Previously, the Government of Ontario determined that disputes regarding the negotiation of collective agreements for hospital and nursing home workers, firefighters and police would not be determined by recourse to strikes or lockouts, but through binding arbitration. Collective bargaining for municipal and non-teaching employees in the education sector is governed by the ordinary provisions of the Labour Relations Act, including the right to strike. However, as a result of Bill 136, where there is a restructuring of an employer in the municipal or education sector, the first collective agreement following the restructuring may be determined by an interest arbitrator, who will be required to apply all the statutory criteria under dispute in this case.

191. Schedule Q to Bill 26 sets out a number of criteria that arbitrators are required to consider in making a decision or award, including the following:

the employer's ability to pay in light of its fiscal situation;
the extent to which services may have to be reduced, in light of the decision or award, if the current funding and taxation levels are not increased.

In addition, under Schedule A to Bill 136, an interest arbitrator is now also required to take into account "best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers".

192. The complainants submit that requiring public sector interest arbitrators to consider the above-noted criteria allows the Government to determine unilaterally the terms and conditions of employment, interferes with the impartiality and independence of arbitrators, impairs confidence in the arbitration process, vitiates the adequacy of the arbitration process as a replacement for the ability to strike, and undermines the process of free collective bargaining. In addition, the complainants contend that the imposition of the ability to pay criterion is, in effect, a subterfuge for wage restraint.

193. The complainants state that ability to pay/affordability has not been an accepted part of interest arbitration in Ontario. While the factor of the employer's ability to pay may have legitimacy in private sector bargaining, it has been consistently and repeatedly rejected as being an irrelevant criterion in the public sector. One of the most important principles governing interest arbitration, in light of the withdrawal of the right to strike of the workers to which the procedure applies, is that it should attempt as closely as possible to replicate the results of free collective bargaining. Pursuant to that goal, the traditional criterion used by arbitrators to determine wages in public sector collective agreements in Ontario, as in other Canadian jurisdictions, has been comparability with employees performing similar work for the same employer, with employees performing similar work for other employers in the public sector, and with employees performing similar work for employers in the private sector. This "comparability" criterion ensures that wages for employees governed by interest arbitration in the public sector follow freely negotiated collective agreements in those sectors where the parties have the right to strike.

194. Requiring arbitrators to consider the employer's ability to pay in light of its fiscal situation provides the Government, in the opinion of the complainants, with the ability to effectively determine the outcome of disputes regarding financial compensation through the exercise of its spending power. In reality, "ability to pay" as used in Schedule Q to Bill 26, amounts to no more than the decision of the public sector employer, or the Government which is the ultimate paymaster, as to how much it is willing to pay.

195. The complainants contend that entrenching ability to pay as a criterion that must be taken into account in arriving at awards, compromises the integrity and independence of arbitrators by compelling them to become executors of government budgetary policy. Furthermore, requiring interest arbitrators to consider the extent to which services may have to be reduced as a result of an award may have the effect of encouraging arbitrators not to award a wage increase even through it may be justified, if the delivery of a program or service may be affected by such a result. Such requirement, it is submitted, coopts the arbitrators into making essentially political decisions. Arbitrators do not, nor should they, decide whether programs should be cut, whether lay-offs should occur, and whether taxes should be raised or lowered. The responsibility for making these choices is that of elected politicians. Moreover, insofar as requiring arbitrators to consider the extent to which services may need to be cut encourages arbitrators to give priority to the level of service to be provided to the community over the level of wages to public employees, Schedule Q to Bill 26 has the effect of compelling public sector employees to subsidize the provision of services. In this way, public sector employees are singled out to bear a disproportionate part of the cost of providing services from which the entire community benefits.

196. The imposition of government-determined criteria based on government fiscal policies removes the underpinnings of a legitimate arbitration process: independence and fairness, or in ILO terminology, impartiality and adequacy. The inevitable effect of this loss of fairness and independence on the part of arbitrators is a loss of confidence in the arbitration process by its participants. Furthermore, those public sector workers affected by Bill 26 and Bill 136 are no longer provided with an adequate process to resolve disputes that would compensate them for the removal of their right to strike.

197. The complainants further submit that the Government's interference with the interest arbitration process in order to unilaterally establish compensation rates for public sector workers does not place priority on collective bargaining as a means of settling disputes arising in connection with the determination of terms and conditions of employment. The Government's ability to unilaterally dictate the terms and conditions of employment through its fiscal policy, which interest arbitrators are compelled to take into account, has the effect of skewing the negotiating balance between public sector employers and workers and of obviating the necessity to bargain. The Government, or the employer essentially dependent upon government budgeting, has no incentive to bargain regarding terms and conditions of employment for public sector employees covered by Bill 26 and Bill 136 when it has the ability to impose unilaterally its terms in arbitration through the mandatory statutory criteria set out for arbitrators.

198. The complainants submit that the Government's attempt to determine unilaterally wage rates through requiring arbitrators to consider the public sector employer's ability to pay, the extent to which services may have to be reduced and affordability is, in effect, an attempt to use the arbitration process to impose wage controls, which is an abuse of the arbitration process. The imposition of wage constraints has been taken in the absence of compelling evidence as to their necessity. The interference with the settlement of wage rates represented by the disputed criteria is not an exceptional measure limited to a reasonable period; it represents a wage-restriction programme without any time-limit.

199. In addition, the complainant contends that the Government did not adequately consult affected workers or their bargaining agents before adopting Bill 26 and Bill 136. It is stated that with respect to Bill 26 in particular, it was enacted with a degree of disregard for consultation with interested parties and the public in general unprecedented in the province of Ontario. The Government initially attempted to rush the legislation through the Legislature without providing for any public hearings. Only after much public outcry did the Government allow limited submissions to be made, but then heard only one quarter of these submissions. The Government ignored the submissions of the unions representing the workers affected by Schedule Q to Bill 26. To the extent that it took any submissions into account, it increased the amount of interference with arbitration in Schedule Q by adding "taxation levels" as a factor to be considered by arbitrators in having to determine the extent to which services may have to be reduced as a result of an award. Similarly, while the Government was forced to make significant amendments to Bill 136 as a result of pressure from the public and trade unions, the Government steadfastly refused to alter the imposition of the affordability criterion contained in Bill 136.

200. The complainant notes that the interference with free collective bargaining over compensation represented by Bill 26 and Bill 136 follows directly upon the three-year restriction on collective bargaining on compensation under the Social Contract Act, 1993. The complainant submits that this cannot but have a negative impact on the living standards of workers concerned and that neither Schedule Q to Bill 26 nor Bill 136 nor any other legislation brought in by the present Government of Ontario contains adequate safeguards in this respect.

201. Finally, in this context, the complainants submit that the measures taken by the Government through Bill 26 and Bill 136 are, moreover, part of a more extensive policy of interference by the Government with freedom of association and collective bargaining, which includes the following:

the elimination for agricultural workers, domestic workers and certain professional employees of the right to collective bargaining and the right to strike, together with the termination of existing bargaining rights and collective agreements for these workers, which are the basis of Case No. 1900 [308th Report, paras. 139-194];
the attempted repeal of pay equity protection, seeking to override negotiated pay equity plans and eliminate entirely or mostly, all of the pay equity adjustments to which workers among the lowest paid in Ontario, including a large number of SEIU members, were entitled. The amendments were declared by the Ontario courts to be unconstitutional;
interference with the independence and impartiality of the Ontario Labour Relations Board (OLRB) through the appointment and renewal process.

The Social Contract Act, 1993 (Bill 48)

202. The complainants submit that section 48(1) of the Social Contract Act, 1993 (Bill 48), as interpreted by the Ontario Court of Appeal and as confirmed by the promulgation of Ontario Regulation 545/95, interferes with the independence of interest arbitrators dealing with disputes in the public sector. Section 48(1) has been interpreted to preclude an arbitration award from providing for an increase in compensation. Bill 48 came into effect on 14 June 1993 and expired on 31 March 1996. It established a three-year "social contract period" during which public sector employers were required to achieve expenditure reduction targets imposed by the Government.

203. Section 48 of Bill 48 contains specific provisions relating to interest arbitration, and provides that "No increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993". Section 48(3) provides that "Despite subsection (1), an arbitration award or decision may increase the annual earnings of employees to a maximum of $30,000". There was some uncertainty regarding the jurisdiction of arbitrators to award increases for those employees earning over $30,000 (CDN). The other issue arising was whether a board of arbitration could award benefit increases to either those earning more than or less than $30,000. Both issues came before the Ontario Court of Appeal, which held that in addition to freezing compensation increases for the three year period of Bill 48, section 48(1) and (3) prevent an arbitration board from providing in its award for increases in the rates of compensation for employees earning $30,000 or more, which increase would not come into effect or be implemented until after the expiry of the three-year social contract period. The Court of Appeal further held that the jurisdiction to increase the earnings of employees earning less than $30,000 per year relates only to direct monetary pay, not to other benefits; thus section 48(3) does not authorize an increase in benefits to employees earning less than $30,000.

204. On 19 December 1995, prior to the Court of Appeal's decision, however, the Government had already adopted Regulation 545/95, referring to section 48(1) of Bill 48: "'no increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993' means that an arbitration award or decision made on or after June 14, 1993 shall not provide for any increase in compensation." Regulation 545/95 was deemed to have come into force retroactively on 14 June 1993. The effect was that approximately 57 decisions by interest arbitrators between June 1993 and June 1995 were potentially affected by the retroactive application of the Regulation, the majority of which awarded increases now precluded by the Regulation. The complainants take the position that the making of the Regulation by the Government reflects its determination to interfere with the independence and integrity of the arbitration process by stripping the jurisdiction of arbitrators.

205. The complainants submit that the constraint on the arbitrator's authority to award pay and benefit increases under section 48(1) of Bill 48, as interpreted by the Court and as circumscribed by the Regulation, raises the same, as well as additional, concerns regarding the independence of arbitrators and the integrity of the arbitration process as those raised with regard to Bill 26. Indeed, viewed against the background of Bill 48, the Bill 26 criteria constitute, according to the complainants, an even more serious and ongoing violation of freedom of association principles. Due to section 48(1), independent interest arbitrators are prevented from replicating the results of free collective bargaining. Due to section 48(1), interest arbitrators are prevented from exercising a significant part of their role: the determination of fair, just and proper wages, and independent arbitrators are made the mere instruments for the enforcement of the Government's policy of wage restraint.

206. The complainants submit that this interference with the impartiality and independence of interest arbitrators undermines confidence in the arbitration process, vitiates the adequacy of the arbitration process as a replacement for the ability to strike, and undermines the process of free collective bargaining. While Bill 26 mandates that arbitrators consider government imposed criteria, Bill 48 goes further by preventing them from awarding compensation increases altogether.

207. The complainants contend that the interference with the independence of arbitrators represented by Bill 48 is not simply an isolated act of the Ontario Government but is, rather, part of a comprehensive effort to limit the jurisdiction of interest arbitrators to make awards in the public sector that depart from the Government's fiscal policy.

Independent appointment agency for interest arbitrators
Interference with the Ontario Labour Relations Board (OLRB)

208. In the hospital and nursing home sector, and in determining first collective agreements following restructuring in the municipal and education sectors, arbitrators are appointed by the Minister of Labour, a Minister of the Government. There are no statutory restrictions on who the Government can appoint. In the fire sector, arbitrators are appointed by the Solicitor-General, a Minister of the Government, who has full discretion regarding who is appointed. In the police sector, arbitrators are appointed by the chairperson of the Arbitration Commission, who is appointed by the Solicitor-General.

209. The complainants submit that where arbitrators are directly appointed by a government which lays down in legislation certain criteria which arbitrators are bound to follow in the determination of awards, it is inevitable that confidence in the system will be diminished.

210. The complainants also contend that since its election in 1995, the present Government of Ontario has embarked upon a course of conduct which has systematically and seriously eroded the independence of labour tribunals in the province. This interference is not limited to the imposition of statutory criteria on interest arbitrators, but extends to the appointment and renewal of appointments to the OLRB. The complainants explain that the OLRB is the most senior body in Ontario entrusted with the administration of labour relations legislation, including the administration and enforcement of the unfair labour practices protections, the provisions governing certification of bargaining agents, the duty to bargain in good faith, the determination of whether strikes are lawful and whether unlawful strikes should be restrained, and the supervision of strike and ratification votes.

211. The complainants state that the Government has removed eight OLRB Vice-Chairs, as well as the Chair, for a total of nine persons, either through firing or failure to reappoint for a continued term. Of these nine, the background of six consisted of practising union-side labour law. The traditional power and authority of the Chair to recommend effectively the continuation of Vice-Chairs has been eroded, and in many cases of appointment or non-renewal, the Chair was not even consulted by the Government. These changes, it is submitted, have not been without effect on the Board. The complainants explain that SEIU has an existing unfair labour practice against Mr. Johnson, the Chair of the Management Board of Cabinet. During these proceedings, an application was brought before the OLRB to restrain picketing of the public transit system during a one-day general strike against the policies of the Government. Mr. Johnson was quoted in a newspaper to have said that he was considering conducting "a review" of the Board as a result of his view that the OLRB had not sufficiently restricted the picketing activity. As a result, SEIU filed a second complaint, alleging that Mr. Johnson had sought to intimidate, coerce or threaten members of the OLRB, and to influence their decisions on penalty of loss of employment security, particularly given the context of the Government having fired or failed to renew the appointments of various Vice-Chairs. Mr. Johnson denied these allegations.

212. In the course of hearing the second complaint against Mr. Johnson, the Vice-Chair found the entire Board disqualified from hearing the complaint because of the knowledge which all Vice-Chairs of the OLRB had of the Government's action in terminating other Vice-Chairs. As a result, the proceedings were stayed. SEIU was able to obtain an order from the Ontario Court of Justice that an independent adjudicator be appointed to hear the cases against Mr. Johnson. Although the Court's judgement was limited to the unique facts of the OLRB matter before it, the complainants assert that SEIU and other members of the Ontario labour relations community are very concerned that in any case before the OLRB, it may be reasonable to claim that there is a reasonable apprehension of bias institutionally on the part of the Board, arising from the Government's overt attempts to replace Vice-Chairs with those more attuned to its labour relations agenda. A reasonable Vice-Chair would assume that his or her employment security rests entirely with the Premier's office and not with the Chair of the Board. A reasonable person would assume that only those who write decisions favourable to the Government or favourable to the employers will continue to be employed at the Board; thus every decision may be seen as a job application and employment review.

213. In this context, the complainants express their concern that the Government's conduct in connection with the appointment and renewal process at the OLRB can be seen as a failure to comply with freedom of association standards and principles. Without both the fact and the appearance of an independent and impartial Labour Relations Board free from governmental interference, the right to organize cannot be effectively enforced.

214. In conclusion, the complainants submit that the interference with the independence of arbitrators through the imposition of statutory criteria in Bill 26 and Bill 136, the limitations on arbitrators awarding wage increases to take effect even after the expiry of Bill 48, and the interference with the independence of the OLRB, requires now, more than ever, the establishment of an independent body for the appointment of interest arbitrators in Ontario.

B. The Government's reply

Schedule Q to the Savings and Restructuring Act (Bill 26)
and the Public Sector Dispute Resolution Act (Bill 136)

215. The Government states that the inclusion of the financial and economic criteria in Bill 26 and Bill 136 was a response to a longstanding criticism of the interest arbitration system in the compulsory interest arbitration sectors. Over the years, concerns have been expressed by employers in these sectors about the outcomes of compulsory interest arbitrations, in particular that they do not reflect economic realities of employers and do not mirror the results in the sectors where the right to strike does exist. There has been a perception that these results are due in part to the inclination of interest arbitrators to "split the difference" rather than making hard decisions about contentious collective agreement provisions. The criteria, it is submitted, will in no way compromise the independence of arbitrators, but will provide useful guidelines to encourage responsible awards.

216. The Government agrees with the complainants that interest arbitration should mirror as closely as possible the results in sectors which have the right to strike and lock-out. The criteria were designed to encourage, and are expected to lead to, collectively bargained outcomes or awards that are similar to ones that the parties would have negotiated under a right-to-strike regime. The Government asserts its belief in and its support for the collective bargaining process: it is of the view that the best solutions are those that are negotiated and worked out in an independent and self-reliant way. It is hoped that parties will resolve collective bargaining issues themselves rather than relying on arbitrators to resolve impasses. The criteria only apply when parties are unable to resolve the issues themselves. Neither Bill 26 nor Bill 136 impose any requirements with respect to the specific contents of collective agreements or arbitration awards.

217. Regarding the allegation of lack of adequate consultation prior to passing Bill 26 and Bill 136, the Government states that it had consulted extensively on both statutes. With respect to Bill 26, approximately three weeks of public hearings across the province were held. Several hundred individuals and groups made oral and written submissions which were carefully reviewed and lead to a number of amendments during the Third Reading. For example, Schedule Q was amended to clarify that the criteria do not give arbitrators any new powers, in particular, that it does not give them the authority to make decisions on service levels, which was a specific concern raised when the Bill was first introduced. Similarly, both before and after the introduction of Bill 136, the Government conducted productive consultations with labour unions, municipalities and the Ontario Hospital Association, school board associations, and other interested parties about the best way to meet its objectives. In response to these consultations, significant amendments to the entire Bill were tabled.

The Social Contract Act, 1993 (Bill 48)

218. The Government notes that Bill 48 was enacted by the previous Government of Ontario and came into force on 14 June 1993. The Act provides for restraint measures in the public sector. The provisions regarding the restraint measures are no longer in force. Consequently, public sector employers and unions are no longer subject to the restraints on collective bargaining contained in the Act.

219. The Government agrees that there were disputed issues regarding the interpretation of section 48. According to the Government, as a result of this lack of clarity and confusion, the Government made Regulation 545/95 under the Act. The Regulation was intended to clarify the situation, and was not intended to be, nor did it result in, an interference with the independence and integrity of the arbitration process.

Independent appointment agency for interest arbitrators
Interference with the Ontario Labour Relations Board (OLRB)

220. The Government states that in Ontario, interest arbitrators and arbitration boards are usually agreed upon by the parties. Only where the parties fail to agree does a third party have the authority to make appointments upon the request of a party. In the fire and hospital sectors, if the parties cannot agree on the Chair of the arbitration board, application is made under the Hospital Labour Disputes Arbitration Act and the Fire Protection and Prevention Act, 1997 to the Minister of Labour who will appoint an arbitrator. In the police sector, application is made under the Police Services Act or the Public Service Act for provincial police, to the Ontario Police Arbitration Commission, the Chair of which makes the appointment.

221. The Government acknowledges that it is essential to the integrity of these dispute resolution systems that fair and impartial arbitrators be appointed to resolve collective bargaining disputes. The Government expresses its commitment to ensuring that parties in the fire, police and hospital sectors have access to an open and equitable arbitration system. The Government asserts that it has demonstrated its commitment to such a system by replacing the existing pool of interest arbitrators with a new pool which is composed of retired judges who are credible neutrals and who can make hard decisions about contentious collective agreement provisions. These arbitrators can be called upon by the Government when the parties cannot agree on their own arbitrator.

222. With respect to the OLRB appointments, the Government submits that it has always been recognized that it is essential that the Government ensure that appointees to the Board have the experience and knowledge to fulfill the important role that government, labour and the business community expect. The Government states that it recognizes the importance of the impartiality of Vice-Chair appointees at the Board, and confirms its commitment to ensuring the continued independence and neutrality of the Board.

C. The Committee's conclusions

223. The Committee notes that this case concerns allegations of governmental interference with the independence of interest arbitrators and the integrity of the arbitration system in violation of ILO standards and principles on freedom of association. In particular, at issue are Schedule Q to the Savings and Restructuring Act, 1996 (Bill 26), and the Public Sector Dispute Resolution Act, 1997 (Schedule A to the Public Sector Transition Stability Act, 1997 (Bill 136)) which impose criteria on interest arbitrators, including ability to pay, in a system where binding interest arbitration has been statutorily substituted for the right to strike for workers in the hospital, police, fire and school board sectors. In addition, the Social Contract Act, 1993 (Bill 48), as recently interpreted, restraining public sector compensation, is alleged to interfere with the independence of interest arbitrators dealing with disputes in the public sector. Finally, the complainants raise concerns regarding governmental interference with the Ontario Labour Relations Board and call for the establishment of an independent appointment agency for arbitrators.

Schedule Q to the Savings and Restructuring Act (Bill 26)
and the Public Sector Dispute Resolution Act (Bill 136)

224. Schedule Q to Bill 26 amends a number of pieces of legislation, in particular those governing interest arbitration for workers in the hospitals, fire departments, the police services and school boards and teachers. With minor variations that are not relevant for the purposes of this case, the various pieces of legislation are amended as follows:

In making a decision or award, the arbitrator or board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:

The employer's ability to pay in light of its fiscal situation.
The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
The economic situation in Ontario and in the municipality.
A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
the employer's ability to attract and retain qualified employees.

... Nothing [in the above provision] affects the powers of the arbitrator or arbitration board.

225. Schedule A to Bill 136 adds the Public Sector Dispute Resolution Act, 1997, which also amends a number of pieces of legislation concerning compulsory arbitration. The purposes of the Act are stated to be the following:

To ensure the expeditious resolution of disputes during collective bargaining.
To encourage the settlement of disputes through negotiation.
To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers (section 1).

Section 2(2) of the Act states that "In making a decision, an arbitrator or arbitration board shall take into consideration the purposes of this Act". Section 2(3) states that "Nothing in subsection (2) relieves an arbitrator or arbitration board from any requirement under another Act to consider criteria in making a decision".

226. The Committee notes firstly that most of the services covered by compulsory arbitration through Bill 26 and Bill 136 can be considered essential services, that is, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 526]. The school board and teachers do not fulfil this criteria, and should be entitled to exercise the right to strike if they so wish [see Digest, op. cit., paras. 536, 545; see also 278th Report, Case No. 1570 (Philippines), paras. 165-166]. The Committee notes however that in this case the complainants do not seek to question the validity of the compulsory arbitration system, per se, and thus the denial of the right to strike as a means of defending their economic and social interests, but rather object to certain changes in the arbitration system.

227. The Committee recalls that where the right to strike is restricted or prohibited, appropriate guarantees should be given to workers to compensate for the limitation thereby placed on their freedom of action, including adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage [see Digest, op. cit., paras. 546-547]. The Committee notes that the Government and the complainants agree that interest arbitration should attempt as closely as possible to replicate the results of free collective bargaining in sectors where parties have the right to strike.

228. The Committee notes that the criteria set out in the legislation at issue appears to be an attempt to contain the level of wages in particular within certain budgetary limits, though some flexibility is maintained through a balancing of other enumerated factors, which are a comparison with other comparable employees in the private and public sectors, and the employer's ability to attract and retain qualified employees. "Ability to pay", is set out as one of a number of factors to be taken into consideration, along with other factors that the arbitrator considers relevant, and the weight to be given to each factor appears to remain at the discretion of the arbitrator. The Committee notes that certain criteria set out in the legislation are particularly vague, and that the arbitrator is left with broad discretion. In these circumstances, the Committee considers that the compatibility of the criteria with the principles of freedom of association and collective bargaining depends on their application in practice. It therefore requests the Government and the complainants to submit further information in this regard and, in particular, to indicate whether the outcome of arbitration in fact replicates the results of free collective bargaining in a manner that both parties consider desirable.

229. The complainants allege that the Government did not adequately consult affected workers or their bargaining agents before the adoption of Bill 26 and Bill 136. In particular, the complainant states that Bill 26 was enacted with a degree of disregard for consultation with interested parties and the general public unprecedented in the province. With respect to Bill 26, the complainants state that only after an attempt by the Government to rush the legislation through the Legislature without providing for public hearings, and only after much public outcry, were limited submissions allowed to be made, and only one quarter of these submissions were heard. However, the Government states that it had consulted extensively on both statutes, in particular, three weeks of public hearings were held with respect to Bill 26.

230. The Committee recalls that where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, and the arbitration system is an extension of the bargaining structure in this case, it is particularly important that there be an adequate consultation process, whereby all objectives can be discussed by the parties concerned. Such consultation is to be undertaken in good faith and both parties are to have all the information necessary to make an informed decision [see 299th Report, Case No. 1802 (Canada/Nova Scotia), para. 281; 300th Report, Case No. 1806 (Canada/Yukon), para. 126]. The Committee notes that while there were public meetings held, these occurred after the Bills had been drafted, and after much public outcry. The consultations appear to have come very late in the procedure, and the Committee requests the Government to ensure in future that consultations in good faith are undertaken in such circumstances that the parties have all the information necessary to make informed proposals and decisions.

The Social Contract Act, 1993 (Bill 48)

231. The Committee notes that the Social Contract Act established a "social contract period" from 14 June 1993 to 31 March 1996 during which expenditure reduction targets were to be achieved in the public service. While the restraint measures in the Act are no longer in force, section 48 of the Act has been subject to judicial and legislative interpretation to which the complainants object. The relevant subsections of section 48 provide as follows:

No increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993 ...

Despite subsection (1), an arbitration award or decision may increase the annual earnings of employees to a maximum of $30,000.

232. It appears that there had been some dispute as to whether an arbitrator could make an award of compensation for the social contract period, which due to section 48(1) would then not be implemented until the end of that period. Regarding section 48(3), there was also some question as to whether for those earning less than $30,000, an increase in benefits could be awarded. The Court of Appeal for Ontario in a decision dated 15 April 1996, a copy of which was enclosed as an annex to the complaint, has interpreted section 48(1) to mean that "on or after June 14, 1993, the board of arbitration may not make an award that includes increases in compensation". The Court continued, stating that "This is the only interpretation that is in harmony with the remainder of s.48 itself, the scheme of the Act as a whole ... and the object and intention of the Legislature". On the issue of benefits, the Court held that while section 2 of the Act defined "compensation" to include benefits, section 48(3) referred to "annual earnings", thus limiting the board of arbitration to increase only the annual "direct monetary pay" of employees earning less than $30,000 and not benefits. When the case was on appeal, and prior to the above-noted decision being rendered, the Government adopted Regulation 545/95 to clarify the meaning of section 48(1). The Regulation states that "'no increase in compensation shall be given as a result of any arbitration award or decision made on or after June 14, 1993' means that an arbitration award or decision made on or after June 14, 1993 shall not provide for any increase in compensation".

233. The Committee notes that the Social Contract Act, 1993 was examined by the Committee in Case No. 1722 [see 292nd Report, paras. 511-554]. In that case, the Committee noted that the main purpose of the Act was to "achieve reductions in public expenditure over a three-year period which, of necessity, entails some interference in the collective bargaining process ... expenditure reductions may ultimately be obtained through a freeze of wage rates or, if this is insufficient, through compulsory unpaid leaves of absence or special leaves" (paragraph 549). The Committee had expressed its regret that the Government did not give full priority to collective bargaining and felt compelled to adopt the Act. It concluded that a three-year period of limited collective bargaining constituted a substantial restriction and expressed its hope that the legislation would cease to produce effects at the latest at the end of the three-year period. The Committee recalls that in Case No. 1722, it made its conclusions in full knowledge of the severity of the Act, and had expressed its regret in this regard.

Independent appointment agency for interest arbitrators
Interference with the Ontario Labour Relations Board (OLRB)

234. The Committee notes that the complainants raise objections to the direct appointment of arbitrators by the Government and not through an independent appointment agency, and allege that the Government has interfered with the independence of the labour tribunals (the Ontario Labour Relations Board (OLRB)) through decisions on the appointment and renewal of appointments of Vice-Chairs of the OLRB.

235. Addressing firstly the allegation of interference with the independence of the OLRB, the Committee regrets that the Government replied in a general manner to the very specific allegations made by the complainants in this regard, and reminds the Government that its reply to complaints made against it should not be limited to such general observations [see Digest, op. cit., para. 21].

236. The Committee notes that the OLRB is the most senior body in the Province of Ontario overseeing labour relations. The Board's duties include adjudicating issues regarding union certification, negotiation of collective agreements, successor rights, unfair labour practices and strike issues. For most purposes, the OLRB's decisions are final. The Committee considers that there is no doubt as to the fundamental role given to the OLRB in labour relations in the province, and thus considers that it is essential that such a body be fully independent and impartial.

237. The complainants state that since coming to power in 1995, the Government has removed eight OLRB Vice-Chairs and the Chair, through firing or failure to reappoint. The complainants raise the particular case regarding Mr. Johnson, a senior government member, who is alleged to have sought to intimidate, coerce or threaten members of the OLRB, and to influence their decisions on penalty of loss of employment security.

238. The Committee has examined closely the allegations and the decisions of the OLRB and of the Ontario Court of Justice concerning Mr. Johnson which were enclosed as annexes to the complaint. Before the OLRB, SEIU alleged that Mr. Johnson played a decisive role in selecting, on behalf of the Government of Ontario, four particular Vice-Chairs of the OLRB to have their appointments revoked. Secondly, the reappointments that were made in October 1996, were for the first time in the history of the Board explicitly "at pleasure", meaning they could be revoked at any time. Thirdly, Mr. Johnson is alleged to have made various statements to the press suggesting that he would undertake a review of the membership of the Board due to the way it had dealt with a case of protest. Finally, it was alleged that Mr. Johnson had the power to determine the career prospects of Vice-Chairs of the OLRB by controlling their access to the Ministry of Labour's list of arbitrators eligible for appointments under legislation. While feeling obliged not to disclose the details of the process for revoking the appointments of Vice-Chairs, the Vice-Chair hearing the matter stated that at a meeting in September or October 1996, "Vice-Chairs were provided with information concerning the selection process used to choose which Vice-Chairs would have their Orders in Council revoked". This information was key to the Vice-Chair finding that because of a reasonable apprehension of bias, the case could not proceed before the OLRB. The Ontario Court of Justice upheld the finding, and ordered that a disinterested person be appointed to adjudicate the matter.

239. Given the outcome of the above-noted OLRB case, the Committee must express its serious concern as to the perceived effects on the independence of the members of the OLRB due to external pressures brought to bear on them. The Committee considers that, as it has stated with respect to arbitrators, members of a tribunal such as the OLRB should not only be strictly impartial, but if the confidence of both sides is to be gained and maintained, they should also appear to be impartial [see Digest, op. cit., para. 549]. The Committee requests the Government to reply to the specific allegations made in this regard, and to indicate how members are appointed, any consultation process involved, the term of such appointments, and the basis in law and in practice upon which appointments are or can be revoked or not renewed. The Committee also requests to be kept informed of the outcome of the independent adjudication of the case concerning Mr. Johnson, and requests the Government to forward to the Committee a copy of the decision once it is rendered.

240. Concerning the allegation that arbitrators are appointed by the Government without restriction where there is compulsory arbitration in the municipal and education sectors, and fire and police sectors, the Committee notes that pursuant to the legislation, it is only where the parties fail to agree on the arbitrator that the Government plays a role. However, where the Government does appoint the arbitrator, as stated above, it is essential that such person should not only be strictly impartial, but if the confidence of both sides is to be gained and maintained, he or she should also appear to be impartial [see Digest, op. cit., para. 549]. The Committee stresses that this is all the more important in the public sector where the Government itself is one of the parties. The Committee therefore requests the Government to provide it with information regarding the process of choosing arbitrators for appointment where the parties cannot agree on an arbitrator.

Overall industrial relations climate

241. Finally, the Committee considers that the allegations raised in this case must be viewed in the context of the general industrial relations environment in Ontario. The Committee cannot but remark on the fact that after three years of statutorily imposed wage restraint in the public sector through the Social Contract Act, changes have been made to the compulsory arbitration system without full consultation with the parties concerned. In addition, as addressed recently in Case No. 1900 [see 308th Report, paras. 139-194], agricultural workers, domestic workers and certain specified professions have been excluded from access to collective bargaining and the right to strike through legislation, and legislation concerning successor rights has been repealed. In addition, there was an attempt to repeal important pay equity provisions. Given the combination of factors impinging on labour relations in Ontario, the Committee considers it necessary to point out that such actions and restrictions can, in the long term, prove harmful to and destabilize labour relations. The Committee considers that to overcome the loss of confidence of the trade unions and the other residual negative effects on industrial relations that have occurred from the recent governmental action, the Government should consult fully with the trade unions and employers' organizations to determine how to strive to promote confidence in the arbitration, which is essential for harmonious industrial relations. The Committee requests the Government to keep it informed in this regard. The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

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

The Committee requests the Government and the complainants to submit further information regarding the application in practice of the criteria for arbitrators set out in Bill 26 and Bill 136, in particular, to indicate whether the outcome of arbitration in fact replicates the results of free collective bargaining in a manner that both parties consider desirable.
The Committee requests the Government to ensure in future that consultations in good faith are undertaken regarding any changes in the bargaining structure, in such circumstances that the parties have all the information necessary to make informed proposals and decisions.
Concerning the allegation of interference with the independence of the OLRB, the Committee regrets that the Government replied in a general manner to the very specific allegations made by the complainants in this regard. Expressing serious concern as to the perceived effects on the independence of the members of the OLRB due to the external pressures brought to bear on them, the Committee requests the Government to reply to the specific allegations made in this regard, and to indicate how members are appointed, any consultation process involved, the term of such appointments, and the basis in law and in practice upon which appointments are or can be revoked or not renewed. The Committee also requests to be kept informed of the outcome of the independent adjudication of the case concerning Mr. Johnson, and requests the Government to forward to the Committee a copy of the decision once it is rendered.
Recalling that it is essential that the arbitrator should not only be strictly impartial, but if the confidence of both sides is to be gained and maintained, he or she should also appear to be impartial, and stressing that this is all the more important in the public sector where the Government itself is one of the parties, the Committee requests the Government to provide it with information regarding the process of choosing arbitrators for appointment where the parties cannot agree on an arbitrator.
The Committee considers that to overcome the loss of confidence of the trade unions and the other residual negative effects on industrial relations that have occurred from the recent governmental action impinging on labour relations in Ontario, the Government should consult fully with the trade unions and employers' organizations to determine how to strive to promote confidence in the arbitration, which is essential for harmonious industrial relations. The Committee requests the Government to keep it informed in this regard.
The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1941

Definitive report

Complaint against the Government of Chile
presented by
the World Federation of Trade Unions (WFTU)

Allegations: Restitution of confiscated trade union assets

243. The complaint in this case appears in a communication from the World Federation of Trade Unions (WFTU) of September 1997. The Government furnished its observations in a communication dated 13 February 1998.

244. 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

245. In its communication of September 1997, the World Federation of Trade Unions (WFTU) recalls that in September 1973 a coup d'état overthrew the democratically elected Government of President Salvador Allende. The military junta which took over power dissolved the Single Central Organization of Workers (CUT) and the federations in the metal, mining and textile industries, amongst others. All their property (trade union premises, assets and income) was immediately confiscated. The complainant adds that in October 1978, the dictatorship once again declared illegal certain occupational federations, whose income, assets and premises were once again confiscated.

246. The complainant states that after 1988, the CUT reached a compromise with the opposition parties which had re-emerged as a result of the struggles by the workers, whereby with the restoration of democracy all the assets and resources confiscated during the dictatorship would be returned to the trade union movement, and the bank accounts of the above-mentioned federations which had been frozen from 1973 would be unblocked. The complainant adds that during the Government of President Alwyn the CUT was provided, on the basis of a free loan, with premises situated in Moneda numero 1346 as well as other provincial premises. Subsequently, a Bill was presented for the restitution of confiscated assets but it was rejected due to a lack of votes. The complainant points out that the present Government presented another Bill which has made no headway in Congress because it has not been given urgent attention, and that in accordance with national parliamentary procedure it is the Government which must determine the urgency of each piece of proposed legislation. Finally, the complainant states that there is a lack of interest and will on the part of the Government to resolve the dispute.

B. The Government's reply

247. In its communication of 13 February 1998, the Government states that by means of Legislative Decrees Nos. 12 and 133 of 1973, and 2346 of 1978, the legal personality of various trade union organizations and occupational associations was cancelled and these bodies dissolved, with their assets passing to their legal successors or to the State. In 1991, the Ministry of National Property brought before Parliament a Bill on the "restitution or compensation of assets confiscated or acquired by the State by means of Legislative Decrees Nos. 12, 77 and 133 of 1973; 1697 of 1977 and 2346 of 1978", the substance of which had already been discussed and adopted by the Chamber of Deputies and recently by the Senate. The final adoption of these texts is expected during the first half of this year. The Government states that this Bill, which consists of 19 permanent and two transitory sections, establishes a time-limit of one year following its entry into force for individuals, trade union organizations, political parties and legal persons concerned to claim the restitution of the confiscated assets. In the event that these assets cannot be returned, either because they have been sold or because the State decides to keep them since they are used for public services, the respective cash compensation shall be paid. Under the law, it is expected that restitutions for an amount of around 24,000 million pesos (approximately 60 million dollars), corresponding to 254 properties, will be made. Of these, 60 belonged to individuals, 113 to political parties, 21 to trade union organizations and 60 to legal persons. Of the 254 pieces of property, 113 had been transferred and were no longer part of the Treasury assets, and 141 are still in the power of the State.

248. The Government adds that as part of the procedure governing the above-mentioned Bill, the Ministry of National Property drew up a list of the buildings confiscated from trade union organizations, in accordance with the reports provided by the parties concerned. (The Government includes a list of these buildings.) The Government states that the situation of these buildings is as follows: (i) eight were incorporated into the Treasury assets and subsequently transferred free of charge or sold directly to various institutions and individuals; (ii) one was transferred free of charge to the CUT; (iii) seven properties are still registered in the name of the Treasury, some of which are used by state bodies for their own purposes; (iv) no information is available on the present legal situation of three properties; and (v) two properties are not recorded as belonging to the Treasury.

249. The Government specifies that as a means of compensating the loss of the properties transferred to the Treasury as a result of the legislation issued under the military Government, which affected the Single Central Organization of Workers and other trade union bodies, the Ministry of National Property, after the establishment of the democratic Government, granted them usage free of charge of 11 properties throughout the country and has transferred free of charge two buildings in the Bíobío region. (The Government includes in its reply a list of the buildings in respect of which the Single Central Organization of Workers has been awarded a grant of free usage or which have been transferred to the CUT free of charge.)

C. The Committee's conclusions

250. The Committee notes in this case that the complainant alleges the non-restitution of assets confiscated from the Single Central Organization of Workers and other trade union organizations following the coup d'état which occurred in Chile in 1973. More specifically, the complainant states that although a Bill has been placed before Congress providing for the restitution of trade union assets, its adoption has been delayed since the Government has not made it a matter of urgency.

251. The Committee notes that according to the Government, in 1991 the Ministry of National Property placed before Congress a Bill on the restitution or compensation of assets confiscated or acquired by the State, which was discussed and adopted by the Chamber of Deputies and by the Senate, and the final adoption of which is expected during the first half of this year. The Committee furthermore notes that the Government states that the Bill in question establishes a time-limit of one year for individuals, trade union organizations, political parties and legal persons concerned to claim the restitution of the confiscated assets, and also provides that in the event that the assets cannot be returned, a corresponding cash compensation will be paid. In the same way, the Government notes with interest that according to the Government, as a means of compensating the loss of the property transferred to the public Treasury, which affected the Single Central Organization of Workers and other trade union bodies, under legislation issued by the military Government, the Ministry of National Property, following the establishment of the democratic Government, has made 11 grants of free usage by the CUT of buildings throughout the country and has transferred to it free of charge two buildings in the Bíobío region.

252. In this respect, the Committee recalls that the Fact-finding and Conciliation Commission on Freedom of Association set up in 1974, after the change of regime, had requested the adoption of measures with a view to the restitution to trade union organizations of the assets to which they were entitled (see Trade union situation in Chile, 1975, paragraph 531).

253. Considering that the CUT assets were confiscated almost 25 years ago, the Committee expresses its concern over this situation. The Committee also regrets that after seven years, the Bill concerning the restitution of confiscated trade union assets, which was placed before Congress in 1991, has still not been finally adopted. In these circumstances, the Committee urges the Government to take the necessary measures so that the text in question, which has already been adopted by the Chamber of Deputies and by the Senate, can enter into force without delay. The Committee requests the Government to keep it informed of measures taken in this respect.

The Committee's recommendation

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

The Committee urges the Government to take the necessary measures so that the Act on the restitution or compensation of assets confiscated from the trade union organizations can enter into force without delay and requests the Government to keep it informed of measures taken in this respect.

Case No. 1946

Definitive report

Complaint against the Government of Chile
presented by
the Teachers' Association of Chile

Allegations: Defects in a collective bargaining procedure;
anti-union practices

255. The complaint in this case is contained in a communication from the Teachers' Association of Chile dated 20 November 1997. The Government sent its observations in a communication dated 10 February 1998.

256. Chile has not 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), or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

257. In its communication dated 20 November 1997, the Teachers' Association of Chile states that, with the return to democracy in Chile, since 1990 a process has begun of restoring the rights lost by public servants during the preceding period of authoritarian government; this essentially took the form of increases in remuneration, which had seriously deteriorated during that period. Accordingly, in line with the commitments undertaken by the Government of that time in the context of its programme, a public sector committee was set up which met once a year and brought together representatives of the Government, on the one hand, and, on the other, leaders of the organizations representing the public sector and the Single Central Organization of Chilean Workers (CUT). Through frank and open dialogue, this committee reached agreements which were subsequently transformed into national legislation. These agreements were intended to introduce a general adjustment in the amount of remuneration and other benefits for public servants. In this respect, it should be pointed out that these agreements and the enactments in which they were subsequently enshrined were in effect for a period of one year. The complainant organization states that thus, over the years, the groundwork was laid for a collective bargaining process that was ultimately accepted, despite the fact that the "ground rules" according to which it was institutionalized, both as to form and to substance, had been called into question, in addition to the fact that the resulting salary increases had seemed inadequate.

258. The complainant organization points out that, at the same time, sectoral agreements were concluded with the Government to meet the specific interests represented by each organization; both the spirit and the letter of these agreements were independent of and exceeded the general salary adjustments covering the CUT and the other organizations of public servants. In most cases these sectoral wage increases were preceded by industrial action. In 1997 the Government unilaterally and arbitrarily changed the "ground rules" which it had itself accepted in previous agreements, by refusing to negotiate and submitting the general adjustment Bill to the National Congress without going through the bargaining procedures and mechanisms which had been understood as having been approved and given legitimacy by both sides.

259. Specifically, the complainant organization alleges that on 14 October 1997 the public sector organizations and the CUT sent the Government a memorandum setting forth the workers' claims and aspirations to be discussed in the 1997 bargaining round. On 17 October 1997, the Government, through the Ministries of Finance, Labour and Social Welfare and the Economy, issued an invitation to a double session on the following Monday, 20 October, from 10 a.m. to 1 p.m. and from 3.30 p.m. onwards in order to "bring their positions closer together" and explore possibilities of reaching an agreement on a general salary adjustment and holiday bonuses in the public sector. Immediately afterwards the Government stated that "in view of the heavy legislative agenda and the lack of time available to process this Bill, it is necessary to send it next Tuesday in order for the general salary adjustment and holiday bonuses to enter into force on 1 December, which is the chief responsibility of the Government". The complainant organization adds that the Government's claim that an agreement of such scope and importance could be signed after no more than 12 hours of negotiations was unrealistic. It states that the mechanism proposed by the Government placed an unacceptable imposition on the unions since, among other things, it meant that they would be forced not to reach an agreement but rather to accept or reject a rigid and inflexible proposal made by the authorities, within a bargaining period which did not allow them to consult their first-level organizations and thus infringed the elementary principles of freedom of association and trade union democracy. According to the trade union organization, it is obvious that the 12-hour period allowed by the Government to complete negotiations clearly shows its intention not to bargain and the fact that it had already made its decision, namely to submit the Bill on the general salary adjustment to the National Congress without the agreement of the public sector unions.

260. The complainant organization alleges further that the bargaining rules have been changed. It points out that, as the Government stated in reply to its memorandum, up to 1996 the components of the general salary adjustment were inflation or cost-of-living increases, productivity and what was known as the "equity bonus" (minimum level of redistributive social justice). In this case, however, the productivity variable was unilaterally eliminated, the reason given by the authorities being that it had already been negotiated in the agreements concluded with the sectoral organizations, which is an absolutely false, tendentious and malicious assertion. By way of example, the complainant organization cites act No. 19,504, containing the last agreement between the Teachers' Association of Chile and the government authorities. Section 2 of the Act provides that the special increase in remuneration for 1998 "will apply independently of the general pay adjustments established for the public sector". What is more, section 1 of the same Act, concerning the pay increase for 1997, does not refer to the public sector adjustment for that year or state that the increase was being granted as part of the latter. The complainant organization affirms that it is thus a recent Act of the Republic of Chile which refutes the authorities' claim that productivity was taken into account in the agreement that is faithfully reflected in the Act, since none of its provisions state that the above-mentioned special pay increase for teachers was granted as part of the general salary adjustment for the public sector as far as the productivity variable is concerned. What the Act does say is in fact the contrary, as is crystal clear from the use of the word "independently".

261. The complainant organization alleges further that anti-union practices hindering the exercise of freedom of association have been carried out. It points out that sectoral bargaining by public servants has generally been accompanied by industrial action, in the legitimate exercise of the right to strike and other measures that were intended to demonstrate disagreement with the Government and which had no other aim but the defence of socio-economic interests.

262. The complainant organization states that its attention was drawn to a confidential letter, No. 015 of 15 September 1997, signed by the Under-Secretary of Labour and addressed to the regional representatives of the Ministry of Labour and Social Welfare, on the subject of negotiations under way with the National Association of Fiscal Employees (ANEF), the relevant part of which states as follows: "The executive of the ANEF has announced a plan of industrial action calling for a general salary adjustment of 30 per cent in payment of the 'historical debt', among other demands; I would therefore like to have a weekly report on any action taken, messages and measures for the regional implementation of this industrial action plan". The complainant organization states that this confidential letter not only points to an abuse of authority and indicates that the Under-Secretary of Labour has exceeded the powers conferred upon him by the internal regulatory framework but, most importantly, constitutes an act of unlawful and undue interference in the activities and functioning of trade unions.

B. The Government's reply

263. In its communication dated 10 February 1998, the Government states the following:

on 13 October 1997, the Under-Secretary of Labour, on behalf of the Ministers of Finance and Labour, addressed a written invitation to the President and representatives of the Single Central Organization of Workers (CUT) to participate in a meeting with the above-mentioned Ministers in the "process of dialogue on labour and technical matters to determine the general salary adjustment and holiday bonuses in the public sector". This meeting was held at noon on Tuesday, 14 October 1997 in the office of the Minister of Labour and Social Welfare;
on 14 October 1997, at the meeting with the Minsters, 12 public sector workers' organizations coordinated by the CUT submitted a "memorandum from the public sector to the Government concerning the 1997 bargaining round", setting forth the following economic demands: (i) a general 14.1 per cent adjustment in public sector remuneration, taking account of expected inflation of 5.5 per cent plus an 8.6 per cent increase; (ii) minimum wage in the public sector to be increased by 20 per cent; (iii) award of 500 university scholarships for public servants to be effective starting in 1998; (iv) a housing purchase fund; (v) a fund to provide university education to the children of public servants in the sector, equivalent to 250 full scholarships; (vi) Christmas bonus to be fixed at 40,000 pesos for persons earning less than 250,000 pesos and at 25,000 pesos for those earning more; (vii) national holiday bonus to be fixed at 30,000 pesos and 25,000 pesos, respectively, again with the threshold at 250,000 pesos; (viii) an education grant of 35,000 pesos for dependants up to the higher education level, up to the age of 24 years; (ix) 55,000 pesos per worker as a contribution to their welfare; and (x) a special retirement plan to be established;
at the meeting held on Tuesday, 14 October 1997 for the purpose of "dialogue on labour and technical matters concerning the general salary adjustment and holiday bonuses in the public sector", the Ministry of Labour and Social Welfare proposed the following programme and methodology to the CUT leaders and public sector organizations: (a) an initial technical phase consisting of an analysis of wage trends in the sector, previous commitments, the workers' list of demands and new criteria adopted by the Government, culminating in the submission of a technical report by the government team to the Ministers of Finance and Labour; (b) work sessions with Ministers to determine the general salary adjustment and holiday bonuses;
on 14 October 1997 the Under-Secretary of Labour invited the President of the CUT to hold the first session on Wednesday, 15 October, in order to evaluate previous commitments (training, retirement plans, occupational safety committees, crèches, etc.). In addition, he was invited to hold two further meetings, one to study in detail the memorandum containing the workers' economic demands presented to the Ministers and the second to present the Government's view on wage trends in the public sector and new wage-fixing criteria linked to sectoral productivity. These meetings were to be held on Thursday, 16 and Friday, 17 October 1997;
in a written note addressed to the President of the CUT on 17 October 1997, the Ministers of Labour and Social Security, Finance and the Economy expressed their views and proposals in response to the "Memorandum from the public sector to the Government concerning the 1997 bargaining round". This document, entitled "Government proposal in response to the memorandum from the Single Central Organization of Workers to the Government concerning the process of determining salary adjustments and other benefits for 1998", contains the following economic proposals: (i) a general salary adjustment calculated on the basis of future inflation (4.5 per cent) and supplemented by a factor of 20 per cent, totalling 5.4 per cent; (ii) a proposal not to introduce any change in the minimum wage, since the new system of performance incentives brings about another increase in remuneration ; (iii) 500 university scholarships to be granted in 1998; (iv) the Government's housing policy is based on considerations of equity, which does not allow the introduction of social schemes; (v) the authorities consider that the higher education policy meets citizens' needs adequately, ruling out the introduction of other benefits; (vi) a Christmas bonus of 19,500 pesos for those earning less than 205,000 pesos and 11,500 pesos for those earning more than that amount; (vii) a national holiday bonus of 26,100 and 19,850 pesos respectively, applying the same threshold of 205,000 pesos; (viii) an education grant of 28,200 pesos; (ix) 47,000 pesos per worker as a contribution to their welfare; and (x) a proposal to maintain the sectoral agreements that had already been reached. In view of the lack of time available, in the same note the Ministers invited the CUT leaders and public sector organizations "to hold a double working meeting in the Ministry of Finance on Monday, 20 October from 10 a.m. to 1 p.m. and from 3.30 p.m. onwards, with a view to bringing their positions closer together and exploring the possibilities of reaching an agreement on a "general salary adjustment and holiday bonuses in the public sector". In view of the heavy legislative agenda and the lack of time available to process this Bill, it is necessary to send it next Tuesday in order for the general salary adjustment and holiday bonuses to enter into force on 1 December, which is the chief responsibility of the Government". The Ministers went on to invite them to work and resume talks on the weekend (Saturday, 18 and Sunday, 19 October), if the union leaders were available, or on Monday, 20 October, according to the programme outlined above;
on 20 October 1997 the meeting between the Ministers of Labour and Social Welfare, Finance and the Economy and the leaders of the CUT and the public sector workers' organizations was held in order to agree on the amount of the general salary adjustment and holiday bonuses for the public sector for 1998. However, following several hours of discussion during which the sides presented their arguments, the workers' representatives did not yield on their demand for a 14.1 per cent pay adjustment (8.6 per cent increase plus 5.5 per cent past inflation). Faced with the impossibility of reaching an agreement, due to the union leaders' inflexible stance, and taking into account the fact that the Bill would have to be submitted to Parliament as a matter of urgency, on 21 October 1997 the President of the Republic sent it for processing, since it had to enter into force on 1 December 1997;
to sum up the facts, the Government recalls that on 14 October 1997 it launched the process of "dialogue on labour and technical matters concerning the general salary adjustment and holiday bonuses in the public sector" with the Single Central Organization of Workers and its affiliates, in line with its labour and wage policy for the public sector, which is aimed at achieving a constant and simultaneous improvement in the working conditions of public servants and the quality of the services offered to citizens by public institutions. During this process, government representatives had held a series of meetings with representatives of workers and academic circles, at which aspects such as wage trends in the public sector, the decentralization of labour relations and performance were analysed, as well as the state of progress and extent of compliance with the agreements reached between the Government and the CUT on 16 November 1996. These meetings had culminated in the drafting of a technical report setting out the results of the meetings, which had then been submitted to the workers' representatives;
during this period the government representatives had expressed their willingness to work at the pace required by circumstances, given that -- as mentioned above -- the heavy legislative agenda and lack of time available to process the Bill made it necessary for it to be sent as soon as possible to ensure that it would enter into force on 1 December 1997. Unfortunately the workers' side did not understand these reasons and, despite the willingness displayed by the Government, the work session with the Ministers of Finance, Labour and the Economy could only be held one day before the deadline on which the Bill had to be submitted. Therefore, in the Government's view, in the short time available, every effort had been made to bring about a process of effective dialogue, and moreover it had been entirely willing to make every additional effort that would have been required in order to reach a concerted decision on the salary adjustment and holiday bonuses for 1998, but these efforts had been to no avail, despite the willingness expressed by the Government;
the Government points out that social dialogue is not exhausted at a single level; neither does it fail on account of partial disagreement. Nothing is further from the Government's intention than the idea of discarding dialogue as an appropriate vehicle in the relationship between the authorities and the workers, since the Government is deeply convinced of its value, as is clear from the many initiatives taken in order to create, promote and strengthen dialogue and cooperation between employers and workers, both in the productive sector and in the state administration. This is evidenced by the initiatives taken with the aim of proceeding with the ratification by Parliament of the Labour Relations (Public Service) Convention, 1978 (No. 151);
the Government considers that it has pursued a sound wage policy, through which sectoral incentives have been applied for health service employees and teachers and pay mechanisms have been granted on a par with those of municipal employees and those of the centralized state administration. In this context the salary adjustment fixed for 1998 is aimed at compensating for the expected price increase this year and supplements wage increases provided for in sectoral agreements. Under the combined effect of a general adjustment and sectoral pay increases, the average salary increase for public servants in 1998 will be 11 per cent in nominal terms, which compares positively with the 8 per cent nominal increase obtained in private sector pay in 1997. The Government states that the key objectives of the labour policy it has pursued in the public sector are to establish an institutional framework for social dialogue and to introduce performance incentives in order to enhance the dignity of the public service, while at the same time improving the quality of the services offered by state institutions to citizens, particularly those with low incomes;
on 10 November 1997 the President of the Republic promulgated the text that had been approved by Parliament, which was published in the Diario Oficial (Official Gazette) of 19 November 1997 as Act No. 19,533, which introduces salary adjustments for public sector workers and grants holiday bonuses and other financial benefits which entered into force on 1 December 1997.

264. As regards the allegation concerning unlawful interference by the Under-Secretary of Labour in the activities and functioning of public sector trade unions, in the form of a confidential letter, No. 015 of 15 September 1997, the Government states that this letter contained instructions to officials under the authority of the Under-Secretary of Labour, namely the regional secretaries of the Ministry, of whom there are 13 nationwide. The Government points out that these instructions consisted in requesting information concerning the demands for pay adjustments made by the National Association of Fiscal Employees (ANEF) which were reportedly as high as 30 per cent. The Government states that the same officials were requested to circulate information at the regional level on the pay increases granted in the public administration since 1990 and to announce the Government's willingness to launch a new stage in wage determination based on incentives or bonuses for individual and team performance by public servants. Lastly, the Government states that there have therefore not been any anti-union practices or interference in the activities of trade union organizations.

C. The Committee's conclusions

265. The Committee observes that in this case the complainant organization alleges certain defects in the collective bargaining process in the public sector, attributable to the administrative authorities, as well as a change in bargaining rules, namely the fact that the Government did not take productivity into account as a criterion in introducing salary increases for 1998, contrary to previous practice. The Committee notes further that the complainant organization alleges that the administrative authorities engaged in anti-union practices in the form of a confidential letter sent to the regional secretaries of the Ministry of Labour.

266. As regards the allegation concerning defects in the collective bargaining process in the public sector attributable to the administrative authorities, the Committee notes that, in its reply, the Government states the following: (i) on 13 October 1997 the Under-Secretary of Labour addressed a written invitation to the Single Central Organization of Workers (CUT) to participate in the process of dialogue on labour and technical matters to determine the general salary adjustment and holiday bonuses in the public sector; (ii) on 14 October 1997, 12 public sector workers' organizations, coordinated by the CUT, addressed a memorandum to the authorities in which they set forth their economic demands; (iii) on 17 October the administrative authorities communicated in writing to the President of the CUT the Government's proposal in response to the CUT memorandum concerning the process of determining the salary adjustment and other benefits for 1998; (iv) on 20 October the meeting with the CUT and public sector organizations took place, but after several hours of discussion during which the sides presented their arguments, the workers' representatives did not yield on their original demand for pay adjustments; and (v) faced with the impossibility of reaching an agreement and taking into account the fact that the Bill on the general salary adjustment and holiday bonuses would have to be submitted to Parliament as a matter of urgency on 21 October 1997 so as to enter into force on 1 December, the President of the Republic sent it for processing.

267. In this respect, the Committee observes that the allegations of the complainant organization and the Government's reply indicate that a bargaining process was under way between the trade union organizations in the public sector and the authorities. However, the Committee observes that in this case the collective bargaining process for a salary adjustment in the public sector lasted for a period of five days -- from 14 to 20 October -- which, in the light of these circumstances, was inadequate, especially given the fact that the negotiations themselves (that is, once the trade union organization's proposals and the authorities' counter proposal had been put forward) lasted only one day (20 October). In these conditions, the Committee considers that the public sector trade unions did not have sufficient time to negotiate on the salary adjustments for 1998, which in this specific case is contrary to the spirit of collective bargaining. The Committee therefore requests the Government to ensure that in future sufficient advance notice is given to public sector trade union organizations when they are convened for collective bargaining, so as to allow them a reasonable period of time to negotiate their conditions of employment, especially in view of the fact that there are strict time-limits for submitting bills to Parliament.

268. As regards the allegation concerning the change in bargaining rules, namely the fact that the Government did not take productivity into account as a criterion in determining salary increases for 1998, contrary to previous practice, the Committee notes the Government's statement that: (1) the salary adjustment fixed for 1998 is aimed at compensating for the expected price increase this year and supplements wage increases set forth in previous agreements; (2) under the combined effect of a general adjustment plus other sectoral adjustments, the average salary increase for public servants for 1998 will reach 11 per cent in nominal terms; and (3) the key objectives of the labour policy pursued in the public sector are to establish an institutional framework for social dialogue and to introduce performance incentives in remuneration. In this respect, while the Committee observes that provision has been made for a salary increase for workers in the public sector in 1998 and that a policy of introducing pay incentives is being implemented, it would emphasise that the determination of criteria to be applied by the parties in fixing wages (cost-of-living increases, productivity, etc.) is a matter for negotiation between the parties and it is not for the Committee to express an opinion on the criteria that should be applied in fixing pay adjustments. In these circumstances, the Committee will not pursue its examination of this allegation.

269. As regards the allegation concerning alleged anti-union practices committed by the administrative authority in the form of a confidential letter addressed to the regional secretaries of the Ministry of Labour (the content of which was reproduced in the allegations of the complainant organization), the Committee notes the Government's statement that the letter in question contained instructions to officials under the authority of the Under-Secretariat of Labour, requesting information concerning demands for pay adjustments made by the National Association of Fiscal Employees, and asking them to circulate information on the pay increases granted since 1990 and the policy regarding the new round of wage fixing. In this respect, the Committee observes that the text of the confidential letter to which the complainant organization objected reflects the administrative authority's concern to be informed of "action taken, messages and measures for the regional implementation of this industrial action plan". In the view of the Committee, this letter could reflect the authority's concern for the industrial action to take place in accordance with the legislation, for example, by allowing them to take measures to organize minimum services in the event of a strike. Moreover, the text of the letter in question does not contain any indication of an intention to engage in undue interference in the trade union activities of public sector workers' organizations, neither does it order any measures to this effect.

The Committee's recommendation

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

Considering that the trade union organizations of the public sector did not have sufficient time to negotiate on the salary adjustment for 1998, which in this specific case is contrary to the spirit of collective bargaining, the Committee requests the Government to ensure that in future sufficient advance notice is given to public sector trade union organizations when they are convened for collective bargaining, so as to allow them a reasonable period of time to negotiate their conditions of employment, especially in view of the fact that there are strict time-limits for submitting bills to Parliament.

Case No. 1930

Interim report

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

Allegations: Violations of the right to organize and trade unionists'
basic civil liberties, detention of trade unionists and
harassment of family members

271. In a communication dated 4 June 1997, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of violations of freedom of association against the Government of China.

272. The Government sent its observations in a communication dated 15 January 1998.

273. China 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

274. In its communication of 4 June 1997, the International Confederation of Free Trade Unions (ICFTU) alleges that, within the general context in which workers and independent labour activists attempt to establish and/or join organizations of their own choosing, independent trade unions are suppressed by the Government and their leaders are imprisoned.

National legislation

275. The 1992 Trade Union Act says the aim of trade unions is to regulate labour so as to improve labour productivity and economic efficiency, and to play an active role in socialist modernization under the Chinese Communist Party. Unions are to act as intermediaries between workers and management if a dispute occurs. The 1993 revision of the All China Confederation of Trade Unions (ACFTU) constitution defined unions as "the link and bridge between the Chinese Communist Party and the working masses, and the representative of the interests of union members and non-union members".

276. China's first national Labour Code (hereinafter, "Labour Law" in accordance with Government official translation) which entered into force in January 1995 aimed to standardize employment principles and requirements in all types of enterprises, although over 150 million rural and industrial workers were excluded from its scope. Furthermore, the Labour Law does not protect the right to collective bargaining and does not mention the right to strike.

277. Under the Labour Law, collective contracts can be concluded through negotiation between enterprise management and enterprise union officials or, in the absence of a union, elected worker representatives. The contracts can relate to wages, working hours and rest days and must be approved by the local government within 15 days. In reality, collective bargaining does not take place. Employment contracts are drawn up by employers who set wages and conditions, in cases where they are not set by law. There is ample evidence that enterprise managers ignore the new law and that enforcement is minimal.

278. The National Security Law, the Regulations on Re-education through Labour, and the Regulations on Reform through Labour, allow the detention of activists who attempt to organize independent labour action. According to the complainant, re-education through labour (laojiao) is being increasingly used as a form of administrative detention because it avoids the need for a trial and allows local police to hand out sentences of up to three years in a forced labour camp, which in practice may be further increased at will by the authorities, as demonstrated by several cases raised in the complaint.

279. As concerns the right to strike, this right was removed from the Chinese Constitution in 1982 on the grounds that the political system had "eradicated problems between the proletariat and enterprise owners". According to the complainant, the authorities repress any strikes, though many take place over issues such as the non-implementation of the labour law; low wages; poor working conditions; low health and safety standards; long hours and forced overtime; unreasonable management discipline; and sometimes physical abuse.

Right to strike in practice

280. The complainant further alleges that the ACFTU unions do not initiate strikes and are often called in by employers and local authorities to get strikers back to work. The Labour Bureaux also give preferential treatment to employers during mediation of labour disputes, as often there is an overlap between enterprise management, local party and government personnel.

281. In Guangdong province, the provincial Labour Bureau passed a strike policy in 1994 saying that a strike with 30 or more participants must be reported to the provincial labour bureau by its local branches within four hours, followed by a detailed report in eight hours. In "serious cases and threats to stability", local government officials should be at the scene within two hours to prevent an escalation of the strike. If necessary, the authorities can use force or threats to make workers resume production. In many medium and large enterprises, the complainant alleges that detention facilities exist and security officials can detain and sentence protesting workers to three years in a labour camp (laogai).

282. In June 1996, a Communist Party circular called on party officials to be on their guard against illegal unions which, it said, could have anti-government and anti-socialist tendencies. It said that since the spring they had been responsible for hundreds of strikes demanding jobs, more pay and more decision-making powers for workers. In early 1997, a document issued by the CCP Central Committee noted an increase in organized demonstrations, riots and petitions against local authorities in local areas. Shortly, thereafter, the Head of the Public Security Bureau (PSB), delivered an internal speech to PSB staff. According to the complainant's sources, he warned that strikes, collective protests, petitions and demonstrations were gravely disrupting public order and demanded that the Party, Government and PSB cooperate in eliminating all factors that could lead to "social instability". He was quoted as stressing that "all disturbances, no matter what the cause, were to be handled firmly and that there could be no compromise with people who organized or led any form of collective protest".

283. Repression of strikes and other collective workers' action continues unabated. On 10 March 1997, workers struck at Xing Bao Electronics, a Hong-Kong-China joint venture factory producing video tapes, televisions and audio recorders in Zhongshan in the southern province of Guangdong. The protest was directed against management's refusal to pay the workers their annual bonus, meant to be paid after the Chinese New Year holiday. As soon as the strike started, at 7.30 a.m., the management called in the local labour bureau and the police. About 20 officials rushed to the scene. During the ensuing negotiation, and after workers refused management's symbolic offer of compensation (i.e. one month's salary instead of the yearly bonus of 1,200 yuan, as stipulated in the contract), the manager threatened to dismiss any workers who failed to show up for work the next morning.

Detention of trade unionists

284. The complainant also alleges that the large numbers of independent labour activists, sentenced to long prison terms in the wake of the repression of China's pro-democracy movement of May-June 1989, have remained in jail or forced labour camp, despite repeated demands by the Committee on Freedom of Association for their sentences to be re-examined and the prisoners to be released.

285. In its two earlier complaints to the Committee on Freedom of Association (Cases Nos. 1500 and 1652), the ICFTU had indicated the circumstances under which a number of independent trade union leaders and activists were detained and sentenced by the authorities in retaliation for their role in the Workers' Autonomous Federations (WAF), which were established in several Chinese cities during the May-June 1989 democracy movement. The ICFTU points out that, in spite of repeated appeals by the international community, including the ILO, the majority either remain in detention or have not been satisfactorily accounted for by the Chinese Government. (The list of detained unionists is set out in Appendix I).

286. As concerns Tang Yuanjuan, Leng Wanbao and Li Wei, who were also specifically the subject of a previous complaint (Case No. 1652), the complainant states that they were reported to have been severely beaten and abused by prison guards in the Lingyuan Prison on many occasions. It was further reported in 1995 that Tang had been diagnosed with pulmonary tuberculosis and hepatitis, which he had contracted in detention. Despite repeated appeals, his family had not been informed by the end of 1995 of the results of his medical tests or what treatment he was receiving. Leng Wanbao was released on medical grounds in 1994 and at some point thereafter appealed to the Chairman of the National People's Congress in order to obtain the release of his two detained colleagues. Moreover, Tang Yuanjuan himself was reported in April 1997 to have lodged an appeal against his sentence before the Changchun Supreme People's Court, requesting that his sentence be overturned. At the same time, Tang's father urged authorities to grant his son medical parole on account of his disastrous state of health. On 29 May 1997, the court reportedly reduced Tang's sentence from 20 to eight years, Leng Wanbao's sentence from 13 to five years and Li Wei's from 13 to eight years. Detained for over two years without trial in the same case, Li Zhongmin was formally declared innocent.

287. The complainant also recalls the case of Wang Miaogen, Chairman of WAF, who was the subject of a previous complaint (Case No. 1500). After having been set free upon completion of sentence, Wang was beaten up on several occasions by the police, for what the complainant believes was his continuous advocacy of independent trade unions. In April 1993, Wang was forcibly committed to a psychiatric institution, a method of repression which the complainant states is intended to silence democratic opposition activists, including independent trade unionists. Wang's internment gave rise to local-scale protests in Shanghai and a number of individuals were harassed by public security organs as a result.

288. The complainant also provides a list of individuals whom it claims were arrested in 1989 for having organized workers' demonstrations or strikes (see Appendix II).

289. Finally, the complainant expresses its concern at the serious discrepancies which have existed between the complainant's understanding of the detention of certain trade unionists and the Government's presentation of the situation, as can be seen, in particular, in its previous complaints (see Annex to Case No. 1652, 286th Report). It therefore requests that the Government be asked to provide complete and verifiable information about the individuals concerned and, in the event that they have been released, to provide information as to the absence of any discrimination in employment subsequent to their release.

290. The complainant further states that, ever since the crushing of the pro-democracy movement and, more specifically, of independent workers' organizations in June 1989, the authorities have continued to detain arbitrarily, arrest and sentence numerous workers who attempted to establish and/or to join organizations of their own choosing, in flagrant violation of Article 2 of Convention No. 87. The complainant identifies numerous such detainees, including 15 who have been sentenced to a total of at least 100 years in prison, and 14 who jointly total over 30 years already spent in secret detention without trial. Many have been condemned by administrative bodies to up to three years' "re-education through labour" sentences against which no appeal is allowed.

291. According to the complainant, the mere expression of an intention to advise, let alone organize, workers leads to arrest upon discovery. Occasionally, however, groups of workers succeed in carrying out limited activities for a time, as long as they remain informal. The threshold of official tolerance seems to be any attempt to obtain formal registration for independent workers' organizations. This is clearly the case in respect of the Beijing-based League for the Protection of the Rights of Working People, disbanded in 1994, once it applied for official registration, and the Shenzhen-based Workers' Forum, whose members attempted to advise and assist migrant workers in the Special Economic Zone of Shenzhen on the establishment of independent trade unions. These groups apparently benefited in the beginning from a limited, tacit tolerance by the authorities. However, at least 12 members and activists are reported to have been detained in 1994 as the group was about to formally apply for registration.

The Free Labour Union of China (FLUC)

292. As concerns the repression of further independent trade union activities, the complainant refers to Liu Jingsheng, a chemical plant worker, who was detained in 1992 for organizing the Free Labour Union of China (FLUC), as well as for his involvement in other organizations dedicated to promoting the social, economic and political rights of Chinese workers and people. He was sentenced to 15 years' imprisonment in 1994 and deprived of his political rights for four years. Fifteen others, including workers' rights activists Hu Shigen, Kang Yuchun, Wang Guoqi, Lu Zhigang, Wang Tiancheng, Chen Wei, Zhang Chunzhu, Rui Chaohuai and Li Quanli, were also sentenced to terms of between two and 20 years' imprisonment: in particular, Hu Shigen and Kang Yuchun received sentences of 20 and 17 years' imprisonment respectively. The following year, these detainees appealed against their sentences. Their appeals were rejected in July 1995 by the Beijing High People's Court.

293. In respect of the more recent detentions of independent labour activists generally, the complainant expresses its utmost concern at the increasing use by the authorities of prolonged, unacknowledged imprisonment and secret detention. In several cases, this "re-education through labour", imposed for nearly three years by a mere administrative decision, was followed by abrupt sentencing without warning to long terms of forced labour. In all cases known in any detail, elementary standards of fair judicial process, including access to counsel, were blatantly disregarded by the authorities.

294. Several cases confirm that independent labour activists, like political prisoners, are singled out for particular harsh treatment in detention. This includes direct physical violence inflicted by prison staff, as well as organized victimization, such as collective beatings by fellow inmates in exchange for favours awarded by the authorities. This physical repression is combined with a consistent pattern of confinement of labour activists to prison sections reserved for inmates carrying infectious and viral diseases. An aggravating factor is that prisoners' requests for proper information about their own health, let alone proper medical care, are systematically turned down by prison or judicial authorities.

295. The complaint further highlights systematic harassment of relatives of imprisoned labour activists. Initially, family members of union detainees are consistently denied any information about, let alone access to, their jailed relatives. At a latter stage, when trial and sentencing is imminent, often after years of secret detention, every available method is used to minimize potential assistance to the prisoners from their relatives. This includes contradictory information about and last-minute changes in timing and location of trials and, even more significantly, the hearing of appeals.

296. More gravely, relatives acting on behalf of union prisoners are on occasion themselves detained without due process, often for long periods. They themselves are in turn unable to inform their close ones about their own whereabouts, which constitutes a further violation of their rights as "untried prisoners". Finally, some of them have been severely beaten in jail. Following their release, some family members of jailed unionists have been forcibly displaced from their usual area of residence in order to prevent further contacts with, assistance to or involvement on behalf of their relatives.

297. To illustrate the nature of severe treatment meted out against trade unionists and their relatives, the complainant cites the case of Zhou Guoqiang, legal adviser to the Beijing Acoustical Equipment Company, who was arrested by the Beijing Public Security Bureau (PSB) even before June 1989 and spent eight months in jail for his involvement with the Beijing WAF. He later served as a legal adviser and counsel for the Beijing WAF leader, Han Dongfang, while Han himself was detained in 1989-92.

298. Zhou was rearrested and sentenced to three years of "re-education through labour" by the Beijing Municipal Government Labour Re-education Administrative Committee in September 1994, for alleged offences that included printing and attempting to distribute T-shirts carrying "inciteful" slogans. The complainant states, however, that these shirts exclusively carried calls for the respect of internationally recognized trade union rights. It therefore considers that Zhou has been imprisoned for the legitimate exercise of the right to freedom of association.

299. Zhou was also accused of "owning an unregistered fax machine", which he allegedly used to correspond with Han Dongfang. The complainant firmly believes that Zhou's alleged contacts and cooperation with Han, who is recognized internationally as a leading figure in the struggle for trade union rights in China, were and continue to be an important additional motive for the particularly harsh treatment to which he is subjected by the authorities.

300. In November 1994, Zhou filed a litigation suit against the PSB for unlawful detention. The case was heard in March 1995 in the forced labour Shuang He farm, in the north-eastern province of Heilongjiang, where he was detained. The camp is located in a remote place, highly inaccessible to Zhou's wife and lawyer. The original verdict was upheld. In July 1995, Zhou was sentenced to one more year in the labour camp for allegedly attempting to escape. The complainant asserts, however, that according to its sources, his "attempted escape" was merely a set-up. Furthermore, in March 1997 the Shuang He authorities again arbitrarily extended his sentence by deducting points from Zhou's "ideological training record". Furthermore, independent labour activists Liu Nianchun and Gao Feng, detained like Zhou in the Shuang He forced labour farm, similarly received additional terms, of 156 and 72 days, respectively.

301. The authorities' March 1995 rejection of Zhou Guoqiang's latest legal appeal on the basis of lack of jurisdiction is, according to the complainant, equally indicative of the intrinsically arbitrary nature of the country's legal system.

302. Moreover, Zhou's rights as a prisoner are systematically violated by the prison farm authorities. Hence, in spite of the tuberculosis which he has contracted while in prison, the authorities have consistently denied him access to doctors and medicines. The complainant also notes that Zhou's rights to correspondence, religious faith, home leave and co-habitation facilities with family members are also systematically denied. Conversations with relatives during family visits are attended and noted in writing by two prison officials, who limit the time and content of the conversations. Zhou is not allowed the statutory marital privacy periods with his spouse. Letters exchanged with his wife have been confiscated, as were his Bible, other reading books and the notebook in which he writes poems.

303. Furthermore, the complainant expresses its outrage at the appallingly cruel, unnecessary and illegal punishment imposed by the authorities on Zhou's wife, Wang Hui, who has been the object of repeated detentions (27 days in May and June 1996, then detained again on 20 September and held for several days before being released) and was beaten up at least twice by public security officials while protesting her husband's imprisonment. Such treatment vividly illustrates the dangers faced, not only by those attempting to organize independent workers' unions or activities, but also by their relatives. Ill-treatment or outright torture of relatives appears to be the highest form of dissuasion meted out to trade unionists. The free exercise of trade union rights is severely restricted, if not impossible, in a climate where human rights are systematically violated.

The League for the Protection of the Rights
of Working People

304. The complainant also raises the case of Liu Nianchun who was a spokesperson for the League for the Protection of the Rights of Working People (LPRWP), which announced its formation in March 1994, simultaneously petitioning the National People's Congress to improve labour rights. The organizers tried to register the League with the Government, but the request was rejected. Liu and a number of his colleagues were arrested in May 1994. Liu was held in secret for five months, then released. He was rearrested in May 1995 and sentenced to a three-year "re-education through labour" administrative sentence in the remote north-eastern Province of Heilongjiang. An appeal, filed with the courts in July 1996 was turned down. The situation of his colleagues in the LPRWP, Yuan Hongbin, Zhang Lin and Xiao Biguang, detained in the 1994 case under various charges amounting to "aiding and abetting a crime", is as follows: Yuan Hongbin was last heard of confined to a library in Guizhou Province. Zhang Lin and Xiao Biguang were reportedly sentenced to three years' reform through labour at a coalmine in Anhui.

305. After his second arrest in May 1995, the authorities refused for over a year to give Liu's family and friends any reason for his detention or say where he was being held. On 16 July Chu Hailan finally saw her husband, who was being made to share a 150-square-foot cell with 15 other people.

306. Furthermore, the complainant expresses its great concern over Liu's grave medical condition and the fact that he has been refused medical treatment despite the fact that medical personnel at the prison had said he should be moved to a hospital.

307. Furthermore, the complainant states that Liu is still forced to work a half day in the fields as part of his ideological re-education. The fact that Liu is sometimes unable to complete his work quota, as a result of his illnesses, is interpreted by the authorities as his poor attitude to the concept of recognizing one's crimes and mistakes. As a result, in March this year, his sentence was arbitrarily extended by six months. Furthermore, from February this year up until the time of writing, the authorities at the centre have denied Liu's wife her statutory right to visit her husband and have not allowed Liu to write to his family to notify them of his medical condition.

308. Finally, the complainant alleges that Liu Nianchun had been tortured with electric shocks and water deprivation after he went on a hunger strike to protest against his jail sentence.

309. The complainant thus considers that Liu Nianchun is detained under life-threatening conditions and that in the light of this and other examples, including that of Zhou Guoqiang, the denial of medical treatment appears to be part and parcel of the punishment inflicted by China's authorities on detained trade union activists.

The "Workers' Forum" in Shenzhen

310. In early November 1996, the complainant was informed that two independent labour activists, Li Wenming and Guo Baosheng, were to go on trial in the southern Chinese city of Shenzhen under the charge of alleged "conspiracy to subvert the Government". Their trial represented the first major criminal proceedings known to have been taken by the Chinese Government against independent union activists since the imposition, in December 1994, of prison terms of up to 20 years in the case of the Free Labour Union of China.

311. Li and others began their activities after discovering the total lack of protection and rights for migrant workers in the Shenzhen Special Economic Zone in 1993. Their group established a workers' night school and drafted a charter of aims and a set of rules of conduct for the establishment of two groups, the "Federation of Hired-Hand Workers" (Dagongzhe Lianhehui) and the "Joint Association of Hired-Hand Workers" (Dagongzhe Lianyi Xiehui), and intended to try to register both bodies with the local civil affairs bureau. They began enlisting local temporary workers to take part in informal discussions. Subjects discussed included the benefits of collective bargaining, the notion of free trade unions and international trade union rights, as described by the relevant ILO Conventions and the Universal Declaration of Human Rights.

312. The Shenzhen police began drawing a tight security net around the activities of all those involved in the group. By late September 1993, the fledgling workers' discussion groups could no longer meet in safety and had to be temporarily abandoned. Li was dismissed from his job and all the fellow activists he had hired were left jobless. Li's dismissal and the ensuing employment loss suffered by his colleagues may pose additional problems as regards respect by the Chinese Government of the right to organize, as guaranteed under the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

313. Li's group reformed and began to publish and distribute a short unofficial bulletin called Dagong Guangchang, which loosely translates into "Workers' Forum". The "Workers' Forum" consists overwhelmingly of reprints or explanatory accounts of major international trade union rights standards, including those mentioned in the relevant ILO Conventions; reprints of articles on labour rights problems and abuses in Chinese factories that had already been published in the official Chinese press; brief interviews with, or descriptive reports on, the daily lives of Chinese migrant workers who had come to Shenzhen in search of employment; and poems commemorating, among other things, the deaths of migrant workers in factory disasters. [The complainant annexed a copy of an article from "Workers' Forum" to its complaint.]

314. The complainant considers that the publication of such materials vividly conveys the trade union nature of the group's activities. Conversely, the fact that publishing such materials could earn their authors any judicial problems at all clearly demonstrates the extent to which Chinese authorities are determined to prevent any free labour activities whatsoever from taking place in the country.

315. Li was picked up by the police in May 1994, then kept for 30 months in secret, illegal detention. At the same time, 12 other members and activists of the group, including Kuang Lezhuang and Liu Hutang, were also detained. All are believed to have been administratively sentenced to "re-education through labour" terms of up to three years. Near the end of their administrative sentences, Li and Guo were charged with "subversion endangering state security", a capital offence under which the defendants faced from a minimum of ten years' imprisonment to the death penalty. Their trial began at the Shenzhen Intermediate Court on 8 November 1996 and on 29 May 1997, Li Wenming and Guo Baosheng had each been sentenced to three-and-a-half years in prison.

316. According to the prosecution indictment, fellow activists from the Shenzhen labour rights group Kuang Lezhuang, Fang Yiping, He Fei, Zeng Jiecheng, Lan Chunquan, Wu Chun, Liu Hutang, Zheng Wuyan and Wan Xiaoying have already "all been dealt with separately" (jun ling zuo chuli) by the authorities. The complainant is convinced, both on legal grounds and in view of factual evidence, that this means that they were sentenced without trial to various terms of re-education through labour of up to three years.

317. In January 1997, Li's health was reported to have seriously deteriorated in detention. He suffered from nephritis and dropsy. Moreover, during his trial in Shenzhen two months earlier, Li had informed judges that he suffered from a serious kidney disease and requested to be provided proper medical treatment, failing which he ran the risk of part of one kidney being removed. The court did not reply to his request nor to that of Li's relatives, who had applied for a temporary release on bail in order to seek medical treatment. In March, the complainant was informed that Li had been allowed to see a doctor and moved to a somewhat less cramped prison cell. By June 1997, however, it had been informed that Li suffered from acute kidney damage and was in severe pain. According to medical sources who spoke to his family, he risked losing at least one kidney unless he obtained immediate specialized treatment. Such treatment, however, continued to be refused by the Shenzhen municipal prison authorities.

China's criminal law

318. The complainant also refers to a draft revision of the country's 17-year old criminal law, submitted to the National People's Congress (NPC) on 8 March 1997 and adopted during the same session. The law entered into force on 1 October 1997. Presented as "permeating the whole ... legislation with the concept of safeguarding people's rights", the 258 articles added to the Criminal Code are designed to "protect people and punish criminals". Protection of citizens' rights to safety, health, personal freedom, work, election, religious freedom, marriage and rights of family is to be notably improved. Freedom of association is conspicuously absent from this list. The press despatch indicates that forced labour, which has "emerged of late", would be punished with a jail sentence of up to three years. Nothing suggests, however, that there is any connection between this measure and the institutionalized system of "re-education through labour". It can therefore be assumed that the revised law shall do nothing to protect would-be union organizers from prosecution. It may however be noted that the press release reported "the establishment ... of a major principle of criminal justice, that crimes and punishment must be judged and meted out in accordance with specific provisions of the law", which would "ensure that criminals be punished while the innocent be free from prosecution". "Behaviours that are not crimes must not be punished."

319. The complainant argues that free labour activists are consistently subjected to long terms of forced labour imposed without trial, for acts which cannot possibly be qualified as crimes. The announced changes in China's criminal law, if implemented, should logically open the way for a revision of their sentences or, at the very least, their appeals should be heard in full fairness.

320. Finally, the complainant refers to two taxi drivers, Zheng Shaoqing and Chen Rongyan, each of whom received administrative sentences of two years' "re-education through labour". In January 1996, they had organized a half-day taxi strike in Zhuhai, a Special Economic Zone (SEZ). Their strike was in protest at severe penalties, including high fines and the impoundment of their vehicles against drivers accused of minor traffic violations. Zheng's and Chen's place of detention is unknown at the time of writing.

321. In conclusion, the complainant considers these cases to illustrate perfectly the comprehensive pattern of repression exerted by the authorities against any independent trade union activists, as soon as they are uncovered by the public security system. This pattern includes:

an extended period of arbitrary detention, ranging from a few months to over two years;
subjection to up to three years of "re-education through labour", imposed by minor security or administration officials and against which there is no appeal;
mistreatment of and refusal of medical care to detainees performing forced labour;
near to or upon completion of administratively imposed forced labour terms, the upgrading of charges from "counter-revolutionary propaganda and incitement" to "conspiracy to subvert the government", the most serious offence in the Chinese Criminal Code, which carries sentences of up to life imprisonment with forced labour.

322. The complainant concludes by recalling that over six years after the events of Tiananmen Square, the Government of the People's Republic of China keeps in jail a number of prisoners whom the ILO Committee on Freedom of Association has already found to have been detained and sentenced in retribution for their exercise of internationally guaranteed trade union rights and whose release it has repeatedly requested. Most of them were leaders of the Workers' Autonomous Federations in their respective regions, for which they serve terms of three to 13 years or life imprisonment. The persistent criminalization of legitimate union activity in the Shenzhen case, through requalification of charges from "counter-revolution" to "subversion endangering state security" confirms the authorities' long-standing policy of stamping out any independent trade union activity.

323. Finally, the complainant regrets the Government's refusal to ratify the fundamental ILO Conventions, in particular those concerning freedom of association and considers this indicative of the Government's intent to continue to refuse to abide by international labour standards.

B. The Government's reply

324. In its communication dated 15 January 1998, the Government states that there has been continuous, rapid and healthy development of democracy and legislation in China over the last 20 years. The standard of living has risen significantly and fundamental rights and working conditions have improved considerably. The Trade Union Act was promulgated in 1992 and the first Labour Law was adopted in 1994, ensuring legal protection of workers' rights and interests. Given these circumstances, the Government finds it incomprehensible and strongly regrets the submission of the present complaint.

325. The Government has nevertheless undertaken vast inquiries in respect of the allegations made with the Minister of Public Security and the Minister of Justice, as well as with the All China Federation of Trade Unions (ACFTU) and the cities and provinces of Beijing, Shanghai, Guangdong, Hunan and others.

326. As concerns the legal protection of workers' rights and interests, the Government claims that the allegations that the right to organize for workers is not ensured, that there is no collective bargaining, that employment contracts are set unilaterally by the employer and that strike action is repressed are all arbitrary. The Government then cites a number of sections of the Labour Law which it considers demonstrates that the rights and legitimate interests of workers are protected.

327. As concerns the allegations in respect of collective bargaining and the unilateral drawing up of employment contracts, the Government first points out that the Labour Law provides that, in order to establish labour relations, an employment contract must be concluded, the text of which may be furnished either by the employer's unit or by the worker, or fixed jointly by the two parties. In any event, the principles of equality and consultation must be respected when drawing up a contract. The Law also sets forth specific matters which must be included in a contract, such as any amendments made to it, denunciation, length and duration. The fact that isolated employers may not respect the Law is inevitable, but this should not justify reproaching a government for isolated events. Inspection mechanisms exist under the Ministry of Labour and labour bodies within employer units and unions at different levels can also supervise the application of the legislation. Violations of the Law are severely punished.

328. The Government also refers to the sections of the Labour Law concerning collective bargaining which, it concludes, demonstrate that collective bargaining has been given legal form in China. Moreover, the Ministry of Labour has issued two publications entitled "Rules governing collective agreements" and "Instructions on the pilot projects of the conclusion of collective agreements through collective bargaining". According to available statistics, collective bargaining is practised in over 90,000 enterprises covering over 40 million employees. While machinery for collective bargaining is in its initial stage in China, the Government asserts that, as the policy of reform and opening develops and the work system revision intensifies, collective bargaining and collective agreements will be more fully regulated, on the basis of acquired experience, with the establishment of an Act on collective agreements.

329. As concerns the Trade Union Act, the Government indicates that the information collected from the Minister of Public Security and the ACFTU contradict the allegations made by the complainant. According to a high-level official of the ACFTU, this Act grants unions the right to correct any act in violation of the Labour Law and the rights and legitimate interests of workers. Moreover, this Act also provides that unions can assist and guide employees in the conclusion of employment contracts and collective agreements and that they may also participate in mediation and arbitration of disputes. Indeed, Chinese legislation acts as a fundamental guarantee enabling unions to defend the legitimate rights and interests of workers which, according to the Government, is a more efficient and effective way to equitably resolve problems than having recourse to strike or other forms of confrontation. As concerns the complainant's criticism that the ACFTU does not initiate strike action, the Government considers that this reproach is contrary to the objectives of international labour standards which are aimed at the promotion of social peace and justice.

330. As concerns the status of the ACFTU, the Government further indicates that the head of this mass organization has emphasized that it regroups employees on a voluntary basis and carries out its activities in an independent and autonomous manner through various means for the defence of the legitimate rights and interests of employees. No one is either prohibited or obliged to join the ACFTU. The ACFTU has been promoting unionization in all types of enterprises for the defence of workers' rights and interests. The 1995 statistics show that the unionization rate of enterprise employees has reached 80 per cent, thus demonstrating the increasing realization of the right to organize of Chinese workers.

331. As concerns the allegations referring to independent organizations of workers, the Government indicates that these organizations are not actually unions, but rather groups of individuals who, instead of defending workers' interests, are devoted to illegal activities endangering state security. The prohibition of such groups, therefore, ensures a better defence of workers' fundamental interests.

332. Furthermore, the allegation referring to a statement made by the Minister of Public Security is pure invention. The Minister did take certain necessary preventive measures to ensure that the return of Hong Kong and the XVth Congress of the Chinese Communist Party took place successfully.

Individual cases

333. As concerns the specific allegations of trade union rights violations, the Government asserts that the complainant has persistently confused criminal acts with freedom of association. The Government reaffirms the particular importance it accords to democratic rights, including freedom of association and refers to the consecration of this right in its Constitution and laws. In practice, workers are enjoying ever greater democratic rights and civil liberties. Yet, as is true elsewhere, Chinese workers must respect state laws in exercising the right to organize and trade union activity.

334. As concerns Hu Nianyou and Yao Guisheng, the Government indicates that its inquiries and verification with the Hunan Peoples' Tribunal have revealed that Hu and Yao were sentenced to ten and 15 years in prison for committing the crime of pillaging in 1989. Hu was released in 1993 for good behaviour, whereas Yao remains in detention.

335. Chen Gang, Peng Shi and Liu Zhihua were condemned to death and to life imprisonment, respectively, in 1989 for the crime of "hooliganism". Chen's punishment was reduced twice and he is presently serving a sentence of 11 years' imprisonment. Peng's punishment was reduced to ten years and Liu's punishment was reduced to 11 years; both are still in detention.

336. As concerns the League for the Protection of the Rights of Working People (LPRWP), the Beijing Commission for re-education through labour has indicated that Liu Nianchun has been given three years' re-education for the misdemeanour of disturbing the social order and accepting financing from a hostile organization outside China. Zhang Lin, who was serving three years' re-education for "hooliganism" was released in May 1997 and has gone to the United States.

337. As concerns the Workers' Forum of Shenzhen, the Shenzhen Peoples' Tribunal has indicated that Li Wenming and Guo Baosheng were sentenced in May 1997 to three years and six months' imprisonment respectively for activities endangering state security. Kuang Lezhuang was sentenced in August 1994 to 18 months re-education and has already been released.

338. As concerns the Free Labour Unions of China (FLUC), the Government indicates that the Beijing Peoples' Court has proven with incontestable facts that Hu Shigen, Liu Jingsheng, Kang Yuchun, Wang Guoqi, Lu Zhigang, Wang Tiancheng, Chen Wei, Zhang Chunzhu and Li Quanli were sentenced to prison for carrying out activities constituting crimes endangering state security and in violation of the Penal Code. As for Rui Chaohuai, the Government states that he does not exist.

339. In conclusion, the Government states that no one on the list was punished for carrying out legitimate or legal trade union activity and it therefore considers the allegations unfounded. Normal trade union activity should be carried out within the legal framework fixed by the State with the singular goal of defending workers' legitimate rights and interests. Anyone, whether worker or member of a workers' organization, should be sanctioned and subdued for committing crimes of pillage, "hooliganism", disturbance of the social order and conspiracy against the Government.

340. As concerns standard-setting activities in China, the Government asserts that the competent authorities take sufficiently into account the principles and provisions contained in relevant standards (whether or not ratified) when drafting and revising legislation so that Chinese legislation is in harmony with international standards and common practice. For developing countries, including China, the constraints resulting from historical factors and present conditions dictate that the ratification of Conventions be a gradual process. The Government therefore considers that the ILO should take sufficiently into account the history, social regime, cultural tradition and level of economic development in each country, fully respect the autonomy of each country to ratify Conventions and provide the measures of active assistance in its competence to help member States to increase their capacity to ratify and apply Conventions.

C. The Committee's conclusions

341. The Committee notes that the allegations in this case concern violations of freedom of association in national legislation, the persistent recourse to arbitrary, and sometimes secret, detention for trade unionists, the repeated use of "re-education through labour" sentences against workers for carrying out legitimate trade union activities, the torture of and denial of necessary medical treatment to detained unionists, the harassment and, in some cases detention, of unionists' family members and the dismissal of workers for legitimate trade union activity.

342. The Committee first notes with great concern the particular gravity of all the allegations presented and deeply regrets that the Government has only provided partial information.

National legislation

343. The Committee notes the allegations made in the complaint to the effect that the 1992 Trade Union Act effectively suppresses the establishment of independent trade union organizations. The Committee recalls that it has been called upon to examine the conformity of the Trade Union Act with freedom of association principles in a previous case [Case No. 1652, 286th Report]. At that time, the Committee had concluded that the obligations set forth in sections 5, 8 and 9 of that Act concerning trade union activity prevented the establishment of trade union organizations that are independent of the public authorities and of the ruling party, and whose mission should be to defend and promote interests of their constituents and not to reinforce the country's political and economic system. The Committee had further noted that sections 4, 11 and 13 resulted in the imposition of a trade union monopoly and that the requirement that grass-roots organizations be controlled by higher-level trade unions and that their constitutions should be established by the National Congress of Trade Union Members constituted major constraints on the right of unions to establish their own constitutions, organize their activities and formulate programmes. [See 286th Report, paras. 713-717.]

344. At that time, the Committee had concluded that many provisions of the Trade Union Act were contrary to the fundamental principles of freedom of association and requested the Government to take the necessary steps to ensure that the provisions in question were modified. [See 286th Report, para. 728(a).] The Committee notes with deep regret that it appears that no action has been taken to amend the legislation in this regard and urges the Government to take the necessary steps to bring the Trade Union Act into conformity with the principles of freedom of association in the very near future.

345. The Committee also notes the allegations in the complaint concerning the absence of protection for collective bargaining and the right to strike in the 1995 Labour Law and the Government's assertion that, to the contrary, legal form has been given to collective bargaining through the provisions of the Law and that it is practised in over 90,000 enterprises. The Committee further notes the Government's statement that, while collective bargaining is still in its initial stage, it will be more fully regulated in the future with the establishment of an Act on collective agreements.

346. Turning to the Labour Law, the Committee notes that certain provisions would appear to restrict the freedom of workers and employers when bargaining collectively. For example, section 34 of the Law provides that a collective contract must be submitted to the labour administrative department and shall go into effect immediately, if no objections are raised by the department within 15 days. No further indication is made in the Law as to the type of objections which might be made by the department, but section 46 provides that the level of wages shall be gradually raised on the basis of economic development and that the State shall exercise macro-regulations and control over the total payroll. The Committee recalls in this regard that the requirement of previous approval by a government authority to make an agreement valid might discourage the use of voluntary collective bargaining between employers and workers for the settlement of conditions of employment. Even though a refusal by the authorities to give their approval may sometimes be the subject of an appeal to the courts, the system of previous administrative authorization in itself is contrary to the whole system of voluntary negotiation. Furthermore, legislative provisions prohibiting the negotiation of wage increases beyond the level of the increase in the cost of living are contrary to the principle of voluntary collective bargaining embodied in Convention No. 98. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 871 and 891.] The Committee therefore requests the Government to take the necessary steps so that these sections of the Labour Law are amended in order to ensure the autonomy of the parties in collective bargaining and to ensure that any requirement for prior authorization of collective agreements be limited to procedural flaws or the violation of minimum labour standards established in the legislation.

347. As concerns the allegations concerning the lack of protection for the right to strike, the Committee notes that it has already been called upon to examine legislation concerning the settlement of labour disputes and its effect upon the right to strike (Case No. 1652). The Committee noted at that time that neither the Chinese Constitution nor the Trade Union Act dealt with the issue of the right to strike and neither authorized it nor banned it. It did note, however, the existence of certain regulations concerning labour disputes which introduced a conciliation and arbitration procedure which allowed no possibility of resorting to strike action and requested the Government to take the necessary measures for workers and their organizations to be able to exercise the right to strike when they considered it necessary to support their claims. [See 286th Report, paras. 719 and 720 and 292nd Report, para. 391.]

348. The Committee now notes that sections 79 to 83 of the Labour Law appears to codify exactly the same type of mediation and arbitration system as the regulations which the Committee had previously criticized. Section 79 provides that, if mediation fails, one party may apply for arbitration. In the event of an objection to the arbitration award, the dissatisfied party may appeal to the people's court whose decision is binding. Recalling that provisions which permit either party unilaterally to request the intervention of the labour authority for the settlement of the dispute may effectively undermine the right of workers to call a strike and does not promote voluntary collective bargaining, the Committee requests the Government to take the necessary steps to amend the legislation so as to ensure that workers and their organizations are able to exercise the right to strike in defence of their social and economic interests. [See Digest, op. cit., para. 519.]

349. The Committee recalls to the Government that the technical assistance of the ILO is available in order to facilitate a review and revision of the above-mentioned legislation should the Government so desire.

350. As concerns the right to strike in practice, the Committee notes the complainant's allegations concerning a 1994 strike policy in Guangdong, the suppression of a strike in 1997 in Xing Bao Electronics and a speech made by the head of the Public Security Bureau (PSB) threatening firm action against anyone involved in a strike. While not replying to these first two allegations, the Government asserts that the reported speech by the head of the PSB is pure invention. It does admit however that the Minister of Public Security did have to take certain necessary preventive measures to ensure that the return of Hong Kong and the XVth Congress of the Chinese Communist Party took place successfully. The Committee must recall in this respect 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 and it therefore requests the Government to take all necessary measures in the future to ensure that this right is protected both in law and in practice.

Detention of trade unionists

Previously examined cases

351. The Committee first notes from the complaint that a number of detained trade unionists who were the subject of earlier complaints have still not been released. It notes with regret that the Government has not replied to the allegations made in respect of Tang Yuanjuan, Leng Wanbao and Li Wei, who were specifically the subject of Case No. 1652. At that time, the Committee had expressed the view that the observations made by the Government did not establish in a sufficiently exact and detailed manner that the heavy sentences against these individuals were not due to activities of a trade union kind. [See 286th Report, para. 399.] The Committee requested the Government to take the necessary measures for a re-examination of all the cases mentioned by the complainant organization with a view to their release [286th Report, para. 400]. The complainant now alleges that Tang, Leng and Li were subjected to ill-treatment and abuse by prison guards and that Tang has been refused medical parole, despite the disastrous state of his health. While the complainant states that the prison sentences of all three were reduced on appeal and that Leng has since been released, Tang and Li are apparently still serving eight year prison sentences.

352. The Committee further notes with concern that the Government has not replied to the allegations that Wang Miaogen, who was also the subject of a previous complaint (Case No. 1500), was beaten upon his release from prison and was forcibly committed to a psychiatric institution in 1993. The Committee would recall in this respect that it has already been called upon to examine allegations relating to the commitment of individuals attempting to establish independent trade unions to psychiatric hospitals [see Case No. 905, 207th Report, para. 129]. At that time, the Committee stressed that all necessary safeguards should be provided to prevent such measures from being taken as sanctions or as means of pressure against persons who wish to establish a new organization independent of the existing trade union structure (ibid.).

353. The Committee notes with great regret that, despite its previous recommendations to the Government to review the situation of detainees with a view to their release, many appear still to be detained and subjected to physical abuse. In the absence of any further information from the Government, the Committee cannot but conclude that the individuals concerned have been detained and sentenced for having carried out legitimate trade union activities. Furthermore, given the allegations of beatings and ill treatment while in detention, the Committee recalls that governments, in such cases, should carry out inquiries into complaints of this kind so that appropriate measures, including compensation for damages suffered and sanctioning of those responsible, are taken to ensure that no detainee is subjected to such treatment. [See Digest, op. cit., para. 57.] The Committee therefore urges the Government to take the necessary measures immediately to ensure the release of all those trade unionists who were the subject of earlier complaints before the Committee and who, according to the present complaint, have not yet been released (Appendix I), including the immediate release of Tang Yuanjuan and of Wang Miaogen from a psychiatric institution, and to set up an independent investigation into the alleged acts of ill treatment carried out in detention against Tang Yuanjuan, Leng Wanbao and Li Wei. The Government is requested to keep the Committee informed of the outcome of the investigation and the measures taken for the release of these detainees.

354. The complainant further provides a list of individuals whom it alleges were arrested in 1989 for having organized workers' demonstrations and strikes (see Appendix II). The Committee would recall in this respect that penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. [See Digest, op. cit., para. 599.] In the absence of any further information from the Government, the Committee cannot but conclude that the individuals concerned have been detained and sentenced for having carried out legitimate trade union activities. It therefore urges the Government to take the necessary measures to ensure the immediate release of those individuals listed in Appendix II.

355. The Committee also notes the complainant's request that, in the light of the contradictions between its own understanding and that of the Government in respect of a number of individuals figuring in Case No. 1652 (see appendix to the 286th Report), the Government should now be asked to supply complete and verifiable information on these individuals, whether they have been released and, if so, whether they have suffered any discrimination in employment. Given that the individuals in question were not the subject of any follow-up in the previous complaint, and in the absence of any additional specific information from the complainant concerning their persecution, the Committee is not in a position to examine this matter further.

Recently detained trade unionists

The Free Labour Union of China

356. The Committee notes the allegations concerning the sentencing of Liu Jingsheng for his attempts to organize the Free Labour Union of China (FLUC), along with 15 others, including workers' rights activists, Hu Shigen, Kang Yuchun, Wang Guoqi, Lu Zhigang, Wang Tiancheng, Chen Wei, Zhang Chunzu, Rui Chaohuai and Li Quanli to from two to 20 years' imprisonment. The Committee also notes the Government's assertion that these individuals were sentenced to prison for having carried out activities constituting crimes endangering state security and in violation of the Penal Code and its indication that Rui Chaohuai does not exist. The Committee recalls however the allegations concerning the FLUC made in a previous complaint that there was a Communist Party directive calling for an investigation to track down the union and the Government's apparently contradictory reply at the time, both denying and admitting the existence of this organization. [See 286th Report, para. 727 and 292nd Report, para. 388.] Furthermore, the Committee must express its deep concern at the harshness of the sanctions and the apparent link between the creation of the FLUC and the sanctioning of its leaders. It therefore requests the Government to provide specific and detailed information on the charges brought against the members of the FLUC cited in Appendix III, including copies of any relevant court judgements.

Beijing Workers' Autonomous Federation

357. The Committee notes the allegations in respect of Zhou Guoqiang who was reportedly rearrested in September 1994 and sentenced to three years' of re-education through labour for printing and attempting to distribute T-shirts carrying "inciteful slogans" which the complainant asserts simply called for the respect of internationally recognized trade union rights. The complainant further reports that Zhou was falsely accused of an attempted escape and consequently sentenced to an additional year, with additional extensions imposed due to deductions from his "ideological training record". Moreover, the complainant alleges that Zhou's basic rights as a detainee have been denied, including access to necessary medical treatment. The Committee also notes the complainant's conviction that Zhou's contacts with Han Dongfang, leader of the Beijing Workers' Autonomous Federation (WAF), have been an important additional motive for the particularly harsh treatment to which Zhou has been subjected by the authorities. Finally, the complainant states that Zhou's wife has been harassed, repeatedly detained and beaten up by public security officials.

358. Firstly, the Committee must recall that it has already considered that the "system of education through labour" with regard to persons who have already been released, constitutes a form of forced labour and administrative detention of people who have not been convicted by the courts and who, in some cases, are not even liable to sanctions imposed by the judicial authorities. This form of detention and forced labour constitutes without any doubt a violation of basic ILO standards which guarantee compliance with human rights and, when applied to people who have engaged in trade union activities, a blatant violation of the principles of freedom of association. [See Digest, op. cit., para. 67.] Noting with deep regret that the Government does not reply to the very specific allegations made in respect of Zhou Guoqiang and his wife, Wang Hui, the Committee requests the Government to provide detailed information in this respect.

The League for the Protection of the
Rights of Working People

359. As concerns the allegations of the sentencing to re-education through labour of Liu Nianchun, Zhang Lin and Xiao Biguang, as well as the detention of Yuan Hongbin, the Committee notes the Government's indication that Liu was sentenced to three years' re-education for disturbing the social order and accepting financing from a hostile organization outside China, whereas Zhang who was serving three years for delinquency was released in May 1997 and has gone to the United States.

360. Recalling generally the above conclusion that the system of education through labour when applied to people who have engaged in trade union activities is a blatant violation of the principles of freedom of association, the Committee notes that the crimes mentioned by the Government are of a very vague and general nature and, as such, cannot but lead the Committee to conclude that these individuals were actually sentenced for their trade union activity. Furthermore, as concerns the Government's indication that Liu Nianchun was sentenced for accepting financing from a hostile organization outside China, the Committee would recall that it has always considered 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 or not they are affiliated to the latter [see 305th Report, para. 380]. Therefore, the sanctioning of any such acceptance as a crime is considered to be an infringement of the principles of freedom of association.

361. The Committee further notes with great concern the allegations concerning the state of Liu Nianchun's health, the refusal of medical treatment, the arbitrary extension of his sentence and the very grave allegations of torture with electric shocks and water deprivation. The Committee must recall in this respect that, where allegations of torture and ill-treatment exist, governments should give precise instructions and apply effective sanctions where such cases are found, so as to ensure that no detainee is subjected to such treatment. It has also emphasized the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person. The Committee therefore insists that the Government take the necessary measures to ensure Liu's immediate release and to provide him with the necessary medical treatment. It further calls upon the Government to establish an independent investigation into these serious allegations in order to determine and punish those responsible. The Committee also insists upon the immediate release of Yuan Hongbin, Xiao Biguang and Gao Feng. The Government is requested to indicate the measures taken to ensure the release of these individuals and to keep the Committee informed on the outcome of the investigation into the serious allegations of torture and ill-treatment in detention of Liu Nianchun.

The "Workers' Forum" in Shenzhen

362. The Committee notes the allegations and the confirmation by the Government in respect of the trial and sentencing to three-and-a-half years' imprisonment of Li Wenming and Guo Baosheng for subversion. According to the complainant, Li, Kuang Lezhuang and Liao Hetang and ten others were detained in May 1994 after having published and distributed a bulletin entitled "Workers' Forum" containing information relevant to workers' rights. Li was kept for 30 months in secret detention and sentenced, along with Guo, in May 1997. Li is reportedly suffering from acute kidney damage and denied the immediate specialized treatment necessary. The complainant further believes that Li's colleagues who were detained in 1994 have been sentenced to up to three years' re-education through labour.

363. While the Government asserts generally that all those imprisoned were sentenced for having committed sanctionable crimes, such as, in this case conspiracy against the State, the Government does not provide any specific information as to the exact nature of the alleged activities nor in reply to the very detailed indications concerning the trade union nature of the publication "Workers' Forum" and of the activities carried out by the group. The Committee must, in this respect, recall that the International Labour Conference has pointed out that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitute civil liberties which are essential for the normal exercise of trade union rights (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session, 1970). [See Digest, op. cit., para. 39.] The Committee is, therefore, of the opinion that Li and Guo have been sentenced for exercising legitimate trade union activity and therefore urges the Government to take the necessary measures to ensure their immediate release and, especially, the provision of the necessary medical treatment to Li. As concerns the other individuals linked to the Workers' Forum, the Committee notes that the Government has only indicated that Kuang Lezhuang was released after having served 18 months' re-education, but has not indicated the status of the others (see list in Appendix IV). The Government is therefore requested to take the necessary measures for their immediate release, if they are still being detained, and to provide the Committee with information on their status.

364. Furthermore, noting the allegations that Li and his colleagues were dismissed following their attempts to register the Federation of Hired-Hand Workers and the Joint Association of Hired-Hand Workers, the Committee would recall that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present. [See Digest, op. cit., para. 690.] The Committee therefore requests the Government to investigate the dismissals of Li and his colleagues in 1993 and, if it appears that they were dismissed for their trade union activity, to take the necessary measures to ensure their reinstatement in their posts should they so desire.

365. The Committee notes with regret that the Government has not replied to the allegations concerning the sentencing of two taxi drivers, Zheng Shaoqing and Chen Rongyan, to two years' re-education through labour for participation in a half-day strike in Zhuhai, a special economic zone. It requests the Government to provide information in response to these allegations.

366. Finally, in light of the above, the Committee cannot but observe that efforts to establish an independent workers' organization, such as the FLUC, the LPRWP, the various WAFs, and the "Workers' Forum" group, results in extremely serious sanctions for the leaders of these groups. The Committee recalls that the right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party. [See 207th Report, para. 124.] The Committee strongly condemns the fact that, immediately following their attempts to formally establish workers' organizations, the leaders of these groups have been arrested and detained and it considers this to be a serious violation of the principles of freedom of association. The Committee must express its firm hope that the Government will immediately take all necessary measures to ensure the full application of these fundamental principles in practice.

The Committee's recommendations

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

Recalling that the Committee has already concluded that several provisions of the Trade Union Act are contrary to the fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes, the Committee requests the Government to take the necessary steps to ensure that sections 4, 5, 8, 9, 11 and 13 of the Act are amended accordingly.
The Committee requests the Government to take the necessary steps to amend sections 34 and 46 of the Labour Law so as to ensure the autonomy of the parties in collective bargaining and to ensure that any requirement for prior authorization of collective agreements be limited to procedural flaws or the violation of minimum labour standards established in the legislation.
The Committee requests the Government to take the necessary steps to amend sections 79 to 83 of the Labour Law as indicated in the conclusions so as to ensure that workers and their organizations are able to exercise the right to strike in defence of their social and economic interests and to ensure respect for this right in practice.
The Committee recalls to the Government that the technical assistance of the ILO is available in order to facilitate a review and revision of the above-mentioned legislation should the Government so desire.
The Committee requests the Government to take the necessary measures immediately to ensure the release of all those trade unionists who were the subject of earlier complaints before the Committee and who, according to the present complaint, have not yet been released (Appendix I), including the immediate release of Tang Yuanjuan and of Wang Miaogen from a psychiatric institution. It further requests the Government to set up an independent investigation into the alleged acts of ill-treatment carried out in detention against Tang Yuanjuan, Leng Wanbao and Li Wei and to keep the Committee informed of the outcome of the investigation and the measures taken for the release of the detainees.
The Committee requests the Government to take the necessary measures to ensure the immediate release of those individuals arrested in 1989 for having organized workers' demonstrations and strikes (see Appendix II).
The Committee requests the Government to provide specific and detailed information on the charges brought against the members of the Free Labour Union of China cited in Appendix III, including copies of any relevant court judgements.
Noting with deep regret that the Government does not reply to the very specific allegations made in respect of Zhou Guoqiang and his wife, Wang Hui, the Committee requests the Government to provide detailed information in this respect.
Emphasizing the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person, the Committee insists that the Government take the necessary measures to ensure Liu Nianchun's immediate release and to provide him with the necessary medical treatment. It further calls upon the Government to establish an independent investigation into the serious allegations of torture and ill-treatment raised in respect of Liu Nianchun in order to determine and punish those responsible. The Government is requested to indicate the measures taken in this respect and the outcome of the investigation.
The Government is further requested to take the necessary measures to ensure the release of the two other members of the League for the Protection of the Rights of Working People, Yuan Hongbin and Xiao Biguang, as well as Gao Feng.
Recalling that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitute civil liberties which are essential for the normal exercise of trade union rights, the Committee urges the Government to take the necessary measures to ensure the immediate release of Li Wenming and Guo Baosheng and, especially, the provision of the necessary medical treatment to Li. The Government is further requested to take the necessary measures for the immediate release of the other individuals linked to the Workers' Forum who are set out in Appendix III, if they are still being detained, and to provide the Committee with information on their status.
The Committee requests the Government to investigate the dismissals of Li Wenming and his colleagues in 1993 and, if it appears that they were dismissed for their trade union activity, to take the necessary measures to ensure their reinstatement in their posts should they so desire.
The Committee requests the Government to provide information in response to the allegations concerning the sentencing of two taxi drivers, Zheng Shaoqing and Chen Rongyan, to two years' re-education through labour for participation in a half-day strike in Zhuhai, a special economic zone.

Appendix I

Workers' Autonomous Federation (WAF) leaders and
militants arrested and subject of previous complaints

Name

Complainant's latest allegation

Government's reply

Tang Yuanjuan

8 years' imprisonment

Leng Wanbao

Released

Li Wei

8 years' imprisonment

Wang Miaogen

Forcibly committed to a psychiatric institution

Hu Nianyou

Life imprisonment

Released

Yao Guisheng

15 years' imprisonment

15 years' imprisonment for pillage

Zhang Jingsheng

13 years' imprisonment

Wang Changhuai

13 years' imprisonment

Li Wangyang

13 years' imprisonment

Appendix II

Additional list of 1989 detainees

Name

Complainant's latest allegation

Government's reply

Chen Gang

Life imprisonment

Death sentence reduced to 11 years' imprisonment

Peng Shi

Life imprisonment

Life sentence reduced to 10 years' imprisonment

Liu Zhihua

Life imprisonment

Life sentence reduced to 11 years' imprisonment

Guo Yunqiao

Death sentence

Mao Yuejin

15 years' imprisonment

Hu Min

15 years' imprisonment

Wang Zhaobo

7-15 years' imprisonment

Hunag Lixin

7-15 years' imprisonment

Huang Fan

7-15 years' imprisonment

Wan Yuewang

7-15 years' imprisonment

Pan Quibao

7-15 years' imprisonment

Yuan Shuzhu

7-15 years' imprisonment

Appendix III

Free Labour Union of China detainees

Name

Complainant's allegation

Government's reply

Liu Jingsheng

15 years' imprisonment

Imprisonment for endangering state security

Hu Shigen

20 years' imprisonment

"

Kang Yuchun

17 years' imprisonment

"

Wang Guoqi

2-20 years' imprisonment

"

Lu Zhigang

"

"

Wang Tiancheng

"

"

Chen Wei

"

"

Zhang Chunzhu

"

"

Rui Chaohuai

"

Does not exist

Li Quanli

"

Imprisonment for endangering state security

Appendix IV

The "Workers' Forum" in Shenzhen detainees

Name

Complainant's allegation

Government's reply

Li Wenming

3.5 years' imprisonment

3.5 years' imprisonment

Guo Baosheng

3.5 years' imprisonment

3.5 years' imprisonment

Kuang Lezhuang

Up to 3 years' re-education through labour

18 months' re-education - released

Liao Hetang

"

Fang Yiping

"

He Fei

"

Zeng Jiecheng

"

Lan Chunquan

"

Wu Chun

"

Liu Hutang

"

Zheng Wuyan

"

Wan Xiaoying

"

Song Xianke

"

Huang Zhong

"

Appendix V

Other labour activists figuring in the complaint

Name

Complainant's allegation

Government's reply

Gao Feng

Re-education through labour

Zhou Guoqiang

3 years' re-education through labour and 1 year for "attempt to escape"

Liu Nianchun

3 years' re-education through labour

3 years' re-education through labour

Yuan Hongbin

Confined to a library in Guiyang

Zhang Lin

3 years' re-education through labour

3 years' re-education through labour; released May 1997

Xiao Biguang

"

Zheng Shaoqing

2 years' re-education through labour

Chen Rongyan

"

Li Zhongmin

Detained for 2 years without trial, then formally declared innocent

Case No. 1888

Interim report

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

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

368. The Committee previously examined the substance of this case at its November 1997 meeting, when it presented an interim report to the Governing Body [308th Report, paras. 327-347].

369. The Government has forwarded its further observations in a communication dated 23 February 1998.

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

A. Previous examination of the case

371. In November 1997, the Committee addressed very serious allegations of violations of freedom of association involving governmental interference in the administration and functioning of the Ethiopian Teachers' Association (ETA), and the killing, arrest, detention, harassment, dismissal and transfer of members and leaders of ETA.

372. The Committee had observed that these allegations indicated a pattern of repressive governmental action against ETA. The Committee commented on the sparsity of the Government's reply, noting in particular, with deep regret, that the Government had not made any specific comments on a number of the grave allegations raised by the complainants.

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

The Committee recalls that the right of workers' organizations can only be exercised in a climate free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for the Government to ensure that this principle is respected.
The Committee urges the Government to provide information urgently regarding (i) the allegations of interference in the administration and functioning of the ETA; (ii) the decision of the Court of Ethiopia regarding the leadership of ETA and its intention to comply with that decision; (iii) those allegedly dismissed, listed in Annex 1; (iv) those allegedly detained, listed in Annex 2; (v) the alleged assault and arrest of Mr. Ato Abate Angore; vi) the arrests and detention of Dr. Woldesmiate, including the dates of the arrests, the date on which charges were laid and the facts on which the arrests and charges were based.
In view of the length of time that Dr. Woldesmiate has been detained, the Committee urges the Government to ensure he is brought to trial without any further delay or is released.
The Committee urges the Government to assist in having the appeal procedure expedited and in the meantime to recognize ETA in line with the Court's decision, and to keep the Committee apprised of the status of the appeal and to forward to it a copy of the decision once it has been rendered.
The Committee also urges the Government to consult with ETA regarding the introduction of an evaluation system on teachers to ensure that it is not used as a pretext for acts of anti-union discrimination, and expresses its hope that a true dialogue between the parties will soon be established.
The Committee urges the Government to take the necessary measures to ensure the reinstatement of the leaders of ETA in their jobs, if they so desire, with compensation for lost wages and benefits.
The Committee strongly urges the Government to ensure that an independent judicial inquiry into the death of Mr. Assefa Maru is carried out immediately to determine the facts, establish responsibility and appropriately punish the perpetrators if any wrongdoing is found, and requests the Government to keep it informed of the outcome of the inquiry.

B. The Government's further reply

374. Concerning the charges against Dr. Taye Woldesmiate, the Government states that Dr. Woldesmiate and five other persons have been accused of the crime of establishing a terrorist organization known as "the National Patriotic Front of Ethiopia", the main goal of which is to overthrow the legitimate Government by force. Dr. Woldesmiate is alleged to be the chairperson of this organization. The main objectives of the organization are alleged to be the following:

destroying key economic institutions by undertaking an armed rebellion and terrorist activities in order to accumulate capital;
collecting funds by terrorizing and harassing business organizations and individuals;
destabilizing the police, security and democratic process of the country by killing government officials and those whom they consider to be supporters of the Government;
performing terrorist activities on foreign nationals and organizations to worsen the image of the Government and thereby win recognition.

375. The Government claims, therefore, that Dr. Woldesmiate's arrest and the laying of criminal charges were not related to his membership and activities in ETA. The Government contests the complainants' statement that the two most serious charges against Dr. Woldesmiate had been dismissed by the Court, stating that the cases are still pending before the Central High Court.

376. With respect to the status of ETA, the Government states that freedom of association is protected under the country's Constitution; however, associations established for anti-social underground political commitment and those performing illegal activities, are not protected. The Government submits that this right of association has been abused by Dr. Woldesmiate and other former members of ETA. Since ETA leaders have a hidden political agenda and take an antagonistic approach, the Government submits that it was necessary to take legal action against them. Regarding the freezing of ETA's assets, the Government states that it is its belief that the case will be decided by an independent court, and notes that administrative interference in judicial proceedings is forbidden under law.

377. Regarding the allegation that ETA members have been harassed and imprisoned, the Government states that, as far as an association is a legal entity, this kind of mistreatment has never happened. While membership of an association is supported and encouraged in Ethiopia, what is at issue in this case, in the view of the Government, is illegal acts being performed under the cover of an association. The case of Mr. Ato Abate Angore is noted in particular in this respect.

378. Concerning the list of members of ETA alleged to have been detained for their active participation in ETA, the Government states briefly that the allegation is "baseless on any other political grounds unless attached with the rule of law".

379. The Government further states that, with respect to the alleged dismissals of ETA leaders and members, the guarantee of protection from discrimination is premised on being a member or leader of a legally established organization/ association. Noting in particular the allegation of the dismissal of ETA leaders from their posts, the Government states that all leaders of ETA were initially drawn and elected from the teaching profession on a staggered basis. Upon the election of new executive members or in the case of default of performance, they were required to return to and resume their former posts. However, former leaders of ETA did not recognize the changes brought about by the teachers themselves who conducted re-elections, and when they were replaced by others, the former ETA members, who were required to return to their former posts if they wanted to remain employed, chose not to return to their jobs.

C. The Committee's conclusions

380. The Committee recalls that this case addresses grave allegations of freedom of association, in particular, the Government's refusal to continue to recognize ETA, the freezing of its assets and the killing, arrest, detention, harassment, dismissal and transfer of ETA members and officials.

381. In the light of the extremely serious nature of these allegations, the Committee must deeply deplore the fact that the Government has provided the Committee with only a general and partial response, refusing or neglecting to reply in detail to the specific questions posed by the Committee in its earlier recommendations.

382. Regarding the allegation of governmental interference in the administration and functioning of ETA, the Government's general argument appears to be that since the leaders of ETA have been charged with committing terrorist activities, any guarantees of freedom of association are to be denied to ETA and its members. The Committee recalls firstly that cancellation of a trade union's registration should only be possible through judicial channels [Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 670]. Furthermore, were it the case that some of the leaders or members of ETA were found to have been involved in illegal activities, the organization per se should still be entitled to continue its activities; workers should not be deprived of their trade union because of a judgement against some leaders or members [see Digest, op. cit., para. 667]. In its arguments to justify the measures taken, the Government relies on alleged actions of individuals within the organization, rather than on the activities of ETA as a whole. Given that no leaders or members of ETA have been found guilty of involvement in terrorist activities, since while charges have been laid, no conviction has yet ensued, an even stronger basis exists for finding the deregistration of ETA to be a violation of freedom of association principles. In addition, not only has the cancellation of ETA's registration not been achieved through judicial channels, the Court of Ethiopia has upheld ETA's claim, and it appears that the Government is not willing to give effect to that decision, pending the outcome of the appeal. The Committee deeply regrets that the Government has not provided any information on the decision of the Court and its intention to comply with it, as previously requested. The Committee strongly urges the Government to comply with the decision of the Court, and unfreeze the organization's assets, and requests to be kept informed of action in this regard. The Committee further requests the Government to keep it informed of the status of the appeal and to forward to it a copy of the decision once it has been rendered.

383. Regarding Dr. Woldesmiate's arrest and detention, in the light of the extreme seriousness of the allegation, the Committee must note with deep regret that the Government in its further reply did not provide the specific information requested by the Committee, namely the dates of the arrests, the date on which charges were laid, and the facts upon which the charges were based; the Committee must again request the Government to provided this information. The Government has limited its reply to the nature of the charges laid. The Committee recalls in this regard that, whether the matter is one that relates to criminal law or to the exercise of trade union rights, is not a question that can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information [see Digest, op. cit., paras. 111, 114].

384. The Committee must also deplore the fact that Dr. Woldesmiate has been detained since May 1996, and recalls that every government should ensure the observance of human rights and especially the right of all detained or accused persons to receive a fair trial at the earliest possible moment [see Digest, op. cit., para. 96]. The Committee strongly urges the Government to ensure that he is either released, or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for his defence.

385. Concerning the allegations involving the detention and harassment of ETA members and leaders, the Committee again considers that the Government's reply is unsatisfactory, being extremely general in nature. The Government in its response to these allegations does not deny that such acts have taken place, and presents as a justification its claim that ETA is not a legitimate organization. The Committee notes, however, that the Court of Ethiopia has acknowledged that ETA is a legitimate organization.

386. The Committee recalls that the arrest and detention of trade union members and leaders, even for reasons of internal security, may constitute serious interference with trade union rights, unless attended by appropriate judicial safeguards, including being informed at the time of the arrest of the reasons for the arrest, promptly notified of any charges, and brought without delay before the appropriate judicial authority [see Digest, op. cit., paras. 84, 93-95]. The Committee further recalls that the rights of workers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders or members of these organizations, and it is for the Government to ensure that this principle is respected [see Digest, op. cit., para. 47]. The Committee strongly urges the Government to ensure that any ETA members who are still being detained are released or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for their defence. Furthermore, the Committee requests the Government to take the necessary measures to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities.

387. The Committee recalls that the unilateral introduction of an evaluation system for teachers was alleged to have been a means of government harassment of ETA, giving rise to serious conflict. The Committee reiterates its request that the Government consult with ETA on this matter to ensure that it is not used as a pretext for anti-union discrimination.

388. With respect to the allegation that all the ETA leaders and a number of members were dismissed, the Committee notes that the Government in its response appears to be claiming that such dismissals were justified since protection against anti-union discrimination is available only to those who are members or leaders of a legally established organization. The Government, therefore, appears not to deny that the members of ETA purported to be dismissed, had in fact been dismissed for membership in ETA or related activities. Regarding in particular the leaders of ETA, all of whom were alleged to have been dismissed, the Government denies that they were dismissed, claiming rather that they were required to return to their posts once the new leadership of ETA had been elected, and they chose not to return.

389. Dealing first generally with the dismissal of the officials and members of ETA, the Committee recalls that the dismissal of workers on the ground of membership in a trade union or due to trade union activities, clearly violates the principles of freedom of association [see Digest, op. cit., paras 690, 702]. Secondly, regarding the specific allegation that all the leaders of ETA were dismissed, it is agreed by the parties to this complaint that the leaders are not working in their former jobs. The Committee notes that the Government's justification for this situation, as with the dismissal of the members, relates to the illegitimacy of ETA as an organization and of its leadership. In the case at hand, it must again be recalled that the Court of Ethiopia has acknowledged that ETA is a legitimate organization. The Committee must, therefore, strongly urge the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits.

390. The Committee deplores that the Government has not replied to the allegation that Mr. Assefa Maru, ETA Assistant Secretary for development and cooperation and Executive Council member, was killed by police as he walked to work, unarmed and making no attempt to flee. Given the extremely serious nature of this allegation, the Committee must again strongly urge the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.

391. Finally, the Committee must express its grave concern due to the extreme seriousness of this case. The Committee strongly urges the Government to cooperate in furnishing the Committee with a detailed response to all the questions posed by the Committee.

The Committee's recommendations

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

The Committee deeply deplores the fact that the Government has provided the Committee with only a general and partial response, refusing or neglecting to reply in detail to the specific questions posed by the Committee in its earlier recommendations, and strongly urges the Government to cooperate in furnishing the Committee with a detailed response to all the questions posed by the Committee.
The Committee deeply regrets that the Government has not provided any information regarding the decision of the Court of Ethiopia concerning the recognition of ETA and its intention to comply with it, as previously requested; the Committee strongly urges the Government to comply with the decision of the Court, and unfreeze the organization's assets, and requests to be kept informed of action in this regard. The Committee further requests the Government to keep it apprised of the status of the appeal and to forward to it a copy of the decision once it has been rendered.
The Committee again requests the Government to provide information regarding the arrests and detention of Dr. Woldesmiate, in particular the dates of the arrests, the date on which charges were laid, and the facts upon which the charges were based.
Deploring the fact that Dr. Woldesmiate has been detained since May 1996, the Committee strongly urges the Government to ensure that he is either released, or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for his defence.
Concerning the allegations of detention and harassment of ETA members and leaders, the Committee again considers that the Government's reply is unsatisfactory, being extremely general in nature. The Committee strongly urges the Government to ensure that any ETA members who are still being detained are released or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for their defence. Furthermore, the Committee requests the Government to take the necessary measures to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities.
The Committee reiterates its request that the Government consult with ETA on the matter of the introduction of an evaluation system for teachers to ensure that it is not used as a pretext for anti-union discrimination.
The Committee strongly urges the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits.
Regarding the death of Mr. Assefa Maru, ETA Assistant Secretary for development and cooperation and Executive Council member, given the extremely serious nature of this allegation, the Committee must again strongly urge the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.

Case No. 1929

Interim report

Complaint against the Government of France (Guiana)
presented by
the Union of Guianese Workers (UTG)

Allegations: Arrest and deportation of trade union
leaders and activists

393. The complaint in this case appears in a communication from the Union of Guianese Workers (UTG) dated 3 June 1997. The Government sent its observations in communications dated 2 March and 19 May 1998.

394. France has ratified the Right of Association (Non-metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and has declared these Conventions applicable without modification to French Guiana.

A. The complainant's allegations

395. In its communication dated 3 June 1997, the Union of Guianese Workers (UTG) makes a complaint to the ILO alleging infringement of freedom of association and in particular of Articles 3 and 8 of Convention No. 87. It alleges the arrest and subsequent deportation of four trade union leaders and activists as well as eight young Guianese in the months of April and May 1997, which it alleges was intended to discredit and reduce its influence.

396. The UTG refers to the following arrests:

11 April 1997, Alain Michel, member of the UTG trade union of posts and telecommunications, and four young persons, Orlando Clet, Charles Cenol, Bernard Rifort-Delem and Maurice Ho Tram Foo, were arrested and detained. The legislation regulating detention was not respected: they were allowed no telephone call to a person of their choosing; no visit by a doctor; no visit by their lawyer after 20 hours' detention; 12 April, they were deported by military plane to Martinique, to the Ducos prison, before the end of the period of 20 hours' detention. They were not able to meet with their lawyers;
18 April, the young Thierry Blezes was arrested and deported to Martinique in the greatest secrecy on 20 April. The rights of the defence were allegedly not respected;
22 April, at 5.55 a.m., Jean-Victor Castor, secretary responsible for training in the UTG Central Office, was arrested at his home without a court order; the means used to do so were substantial: two mobile guard vans and three disguised police cars, telephone lines ripped out, meticulous search of the premises;
the same day, Fabien Canavy, secretary-general of the local union of Cayenne and member of the UTG Central Office was questioned at his place of work at 6.30 a.m., with a similar use of force, and taken to his home which was searched;
Jean-Claude Ringuet, secretary of the UTG union of community officials of Cayenne, on learning about the police visit to his home and the search for him which was under way, went to the police station the same day around 1 p.m., accompanied by the mayor of Cayenne and several work colleagues, where he was arrested;
the young Prevot was arrested at his home on 23 April around 6 a.m., in identical conditions to those of Jean-Victor Castor.

The latter were allowed to see their lawyers at the end of the 20 hours of detention and were deported on 24 April at 5 a.m. to the Ducos prison in Martinique by military vessel without anyone being informed (either family or lawyer). The medical kit belonging to one of the trade union leaders, Jean-Claude Ringuet, who suffers from diabetes, and which was brought to the police station by his wife, was not accepted and he reportedly became ill in the office of the examining magistrate on his arrival at Fort-de-France:

since then, two other young persons, Pascal Cippe and Michel Marcel, were arrested and deported to Martinique to the Ducos prison, and Maurice Ho Tram Foo and Bernard Rifort-Delem were secretly placed in two different prisons in Guadeloupe.

397. The offences alleged by the French magistrates to justify the imprisonment of the UTG activists are:

that in Cayenne, on the night of 12-13 November 1996, they participated in acts of violence with weapons, which did not result in a total work incapacity of the victims for more than eight days, committed by several persons or accomplices against the acting Government Procurator in Cayenne, as well as against members of his family and friends at his home;
in Cayenne, on the night of 12-13 November 1996, they committed acts of damage as an organized group against property belonging to a third party through the use of incendiary substances and likely to pose a danger to persons.

398. According to the complainant organization, the investigation was carried out over a period of three months by a magistrate from Cayenne appointed by the Procurator of the Republic of Cayenne, and then transferred on the grounds of a conflict of interests. The magistrates of Fort-de-France regularly sit in Cayenne on the Court of Appeal of Fort-de-France, which is also the appeal jurisdiction of the court of Cayenne. The file is essentially made up of contradictory statements which were revoked by the witnesses who alleged that they were obtained by force. The main piece of evidence which allowed the proceedings to be initiated was an anonymous statement. The Procurator of the Republic concerned was reported to have said that he had seen no one. A person known in the neighbourhood was said to have seen young persons around the house throwing incendiary devices, without having recognized any of the persons present, although the four trade union activists in question are very well known. Most of the witnesses are young prisoners who have all allegedly retracted their statements. The complainant organization insists that trade union officials would have no reason or interest in burning the house of a Procurator of the Republic.

399. The complainant then recalls the events which preceded the arrests. It explains that in November 1996 high-school students from Guiana went on strike for several weeks to obtain the establishment of a registry and the means for providing a good education and that from the beginning the UTG gave its support to the student movement, since the claims being made had, for several years, been endorsed by the Trade Union of Education Workers of Guiana/UTG. On the evening of 8 November 1996, while representatives of the students were negotiating with the prefecture, the prefect ordered the mobile guard to disperse the young persons and their parents who were demonstrating outside calmly as they awaited the result of the negotiations. Several two-wheeled vehicles, belonging to the students, were burned by the mobile guard. The demonstrators were beaten with truncheons without warning and tear gas was fired directly at the demonstrators. Several nights of rioting followed. One young person was seriously injured by a shot fired at point blank range by a police officer. Others were injured less seriously by grenades and direct shots of tear gas.

400. On 9 November 1996, the UTG called for a general strike on 13 November 1996 against the repression and to obtain the adoption of the claims. More than 5,000 persons participated in the demonstration of 13 November, marching through the streets of Cayenne in a calm and dignified manner. Meanwhile, during the night of 12-13 November 1996, violent clashes occurred between young persons and the mobile guard. Several young persons arrested during the riots of the preceding days were sentenced by the court of Cayenne following a summing up by the Procurator of the Republic which, according to the complainant organization, was the final straw. That night, incendiary devices were hurled against the residence of the Procurator of the Republic, burning his door.

401. Negotiations were held with the Ministers of National Education and Overseas Department and Territories throughout the day of 20 November 1996. At the end of the afternoon, the demands of the students and Guianese population were met.

402. The complainant also provides an historical review of the situation. It explains that the UTG is a young central organization which was set up in November 1967. At its fifth congress in 1985, the guidelines which it adopted enabled it to develop and become stronger. On several occasions it questioned the State about its economic decisions during the major state works between 1988 and 1992, following the non-respect of labour legislation and its alleged accommodating attitude shown to major French enterprises, which resulted in a number of disputes and strikes; it has organized various actions, including strikes in October 1992 and January 1994 in association with other trade union organizations grouped together within the Unitary Trade Union Movement (MSU) or the Conference of Anti-colonialist Trade Unions of French Colonies (CSACF). Major labour disputes also occurred in 1996 and at the beginning of 1997, in particular in the local public service and transport. It was at this time that the repression began against the main leaders of the UTG. The UTG emphasizes that it had gained the majority on the Strategic Committee for the States-General of Real and Lasting Economic Development when its activists were arrested.

403. Finally, the UTG recalls that from 1973, at the time of its third congress, it has campaigned for the independence of Guiana and has confirmed this position at its subsequent congresses.

404. Thus the complainant would like the Government to explain its illicit attempts to limit freedom of association in Guiana and it demands the immediate release of trade union activists and young persons who have been imprisoned.

B. The Government's reply

405. In its communication of 2 March 1998, the Government recalls that France has ratified Convention No. 87 and that this instrument, in the same way as freedom of association which is guaranteed by the national Constitution, applies, without any restriction, to all the territory of the Republic of which the overseas departments are part, including Guiana. The Government, in referring to the General Survey of the Committee of Experts on the Application of Conventions and Recommendations of 1994 on freedom of association and collective bargaining, also recognizes the interdependence between civil liberties and trade union rights.

406. The Government points out as regards the occupational organization status of the UTG under Articles 8 and 10 of Convention No. 87 that the UTG itself recalled the position which it has adopted since 1973 calling for the independence of Guiana, a department which is not, under the French Constitution, divisible from the Republic. Three consequences result from this:

the UTG believes that it has not only an economic and social mission, as stated in the 1952 resolution concerning the independence of the trade union movement, but a political mission which is mixed with the promotion and defence of the interests of Guianese workers;
by its separatist choice, the UTG does not respect the constitutional order, although it is required to do so under the provisions of Article 8(1) of Convention No. 87 which states that "in exercising the rights provided for in this Convention workers and employers and their respective organizations ... shall respect the law of the land";
the criticism levelled by the UTG against the French State does not refer only to a particular aspect of its economic and social policy, whether national or local, but to the exercise of its sovereignty over a portion of its territory. Such an activity is in no way one of the many political activities stemming from trade union activity which are mentioned in the General Survey of the Committee of Experts.

407. The action of the UTG is thus both trade union and political. Thus the UTG was the initiator of the first Conference of Anti-colonialist Trade Unions of the French Colonies (CSACF) which groups together various so-called "pro-independence" trade union organizations of French overseas territories. The positions of the UTG are broadcast by a local radio with similar views and some of its leaders are the heads of local pro-independence parties, one of which has a clear relationship with the UTG.

408. Successive French Governments, accepting the interdependence between trade union rights and civil liberties, and in particular freedom of expression and association, have refused to take any action whatsoever against the UTG as authorized by the provisions of article L.481-1 of the Labour Code. Although the trade union action of the UTG goes beyond the simple defence of material and moral rights, whether collective or individual, of the persons covered by its statutes and the even incisive criticism of economic and social policies, the French authorities have always allowed it to express its views, even when the UTG has acted as a counter-power to the central State.

409. The account of its participation in the States-General of Real and Lasting Economic Development, which appears in the complaint, is in this respect emblematic. These States-General made up of colleges representing the various sectors of Guianese civil society (wage-earners, socio-occupational groups, political parties) raise "the question of a change in status as a fundamental condition for genuine economic development". One of the officials of the UTG, Mr. Pindard, represents the college of (pro-independence) political parties among the officers of the strategic committee which directs the work of various colleges, and which is responsible for establishing guidelines.

410. The overlap between trade union action and political action by the UTG is therefore total. The UTG participates in the States-General which debate the links between the departmental status of Guiana and its economic and social development; one of its leaders has been elected by a college grouping together political parties, which clearly proves that he is a member of one of them.

411. As regards the relationship between freedom of association and the allegedly arbitrary arrests, the UTG complaint establishes a cause-and-effect relationship between the arrests made in April and May 1997 and a desire by the Government to reduce or discredit its influence. For the Government, this argument is mistaken:

according to the UTG, the Government allegedly proceeded to make arbitrary arrests of its activists, but it itself establishes a link between the riots of November 1996 in Cayenne and these arrests;
the UTG complaint does not allege that these riots had a trade union origin. On the contrary, in its complaint, the UTG states that the demonstrations by students, which soon degenerated, "have its support", which means that they were not organized by the UTG. The circumstance, supposing that this were the case, that the striking students were making the same claims that had been made for several years by the UTG education workers' trade union, would suggest rather the autonomy of the student movement;
the UTG states that on 9 November 1996 it called for a demonstration which took place on 13 November without any incident.

This summary shows that the UTG was not a direct party to the negotiations which were held on 8 November between the representative of the State and the students and in the demonstrations which followed. This situation shows that the Government respected freedom of association and that it has not invoked reasons of public order to prohibit it and thus limit the existence of the trade union rights protected by Convention No. 87:

finally, the UTG in its complaint recalls that the attempted burning of the residence of a Procurator of the Republic was not an instance of trade union action in its understanding of the term.

It is clear from the above that the UTG cannot claim that the events in question had a trade union origin or that it participated in them as such.

412. As regards whether the arrest of some members of the UTG, who participated in these movements in a manner which was unrelated to trade union activity, is, as alleged, a serious violation of the principles of freedom of association, the reply can be found, according to the Government, in the General Survey of the Committee of Experts which stipulates:

The arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association. While being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention.

413. The Government notes that rioting is not a legitimate form of trade union activity and that the UTG did not participate in this as such. If some of its members took part in violent demonstrations, it was in a capacity other than that of trade unionists and therefore the question of the application of Convention No. 87 to the case no longer arises.

414. The Government believes that the UTG is acting as much as a political counterpart of the central State as a trade union organization. However, fully appreciating the link which exists between trade union activity and civil liberties, such as freedom of expression, it has always left the UTG free in both its words and its acts provided that they maintain a relationship, albeit a tenuous one, with freedom of association.

415. In conclusion, the Government in replying to the UTG allegations states that the doctrine of this organization is contrary to the principle of the indivisibility of the Republic, whose authorities have ratified Convention No. 87, that the UTG is using this Convention for its own ends and that it should be noted that it does not respect legality, as required by Article 8(1) of the Convention, thus raising the question of whether the UTG, in its doctrine and practice, is an "organization", as defined by Article 10 of the Convention. The Government recalls in this connection that the General Survey stipulates that:

Freedom of association implies, for employers' and workers' organizations, the right to organize freely their activities and formulate programmes of action to defend all the occupational interests of their members in accordance with the law of the land.

416. In its communication dated 19 May 1998, the Government indicates that all the trade unionists concerned have now been released. The Government specifies that: Alain Michel, convoked on 11 April 1997 and imprisoned on 12 April, was released on 15 September 1997; Jean Victor Castor, convoked on 22 April 1997 and imprisoned on 24 April, was released on 27 June 1997, convoked again on 21 July 1997 and imprisoned on 22 July, was finally released on 6 August 1997; Fabien Canary, convoked on 22 April 1997 and imprisoned on 24 April, was released on 29 April 1997; Jean-Claude Ringuet, convoked on 22 April and imprisoned on 24 April, was released on 26 June 1997.

C. The Committee's conclusions

417. The Committee notes that the allegations made in this case concern the arrest and detention of trade union leaders and activists. It notes that the observations of the complainant and the Government on this case differ on several points.

418. For the complainant, the arrest and deportation of four trade union leaders and activists as well as eight young Guianese persons in the months of April and May 1997 were designed to discredit the organization and destroy its influence. The complainant organization explains that the arrests were due to the fact that the trade union officials and activists, designated by name, had participated in a strike movement in November 1996, i.e. six months before their arrests, in support of claims made by a high school student movement which wanted to obtain the establishment of a Registry and the means for providing a good education. According to the complainant, these claims had for a number of years been made by the Trade Union of Education Workers of Guiana affiliated to the UTG. These claims were furthermore satisfied by the public authorities.

419. The complainant acknowledges that acts of violence were committed during the demonstrations of November 1996, but it categorically denies that the trade union officials and activists arrested six months later were implicated in this violence.

420. The complainant also acknowledges having campaigned, since 1973, for the independence of Guiana and raised in 1997 the question of a change in the status of Guiana as a fundamental condition for a genuine economic development of the territory.

421. All these elements allegedly resulted in the arrest and subsequent deportation of the UTG trade unionists, mistakenly accused of having participated in the burning of the door of the house of the Procurator of the Republic of Cayenne during the student demonstrations of November 1996.

422. For the Government, on the other hand, the question arises of the occupational nature of the UTG, in the sense used in Convention No. 87, namely that workers' organizations have the right to organize their activities and formulate their programme of action with a view to defending all the occupational interests of their members in accordance with the law of the land. The UTG itself refers to various positions and action which reflect a total overlap between trade union action and political action.

423. Thus for the Government the participation of the UTG members in the violent demonstrations which took place in Cayenne in November 1996 cannot be considered as the exercise of trade union activity, even of a distorted kind, and was merely the expression of personal initiative or instructions given by political parties. The Government believes that there is no link between the arrest of persons suspected of having committed criminal offences and the infringement of Convention No. 87.

424. The Committee notes that the Government provides observations on the political nature of certain acts and positions of the complainant, but deeply regrets that it refers only generally to the criminal offences allegedly committed by the trade union officials and activists of the UTG and other persons who have been arrested and deported since April-May 1997. The Government does not state whether these persons are still the subject of judicial proceedings. In this connection, the Committee recalls that the replies from governments against whom complaints are made should not be limited to general observations. [See Digest, op. cit., para. 21.] The Committee notes, however, that the trade unionists in question -- Alain Michel, Jean Victor Castor, Fabien Canary and Jean-Claude Ringuet -- have now been released.

425. Noting the observations by the Government on the UTG, the Committee recalls that the fundamental objective of the trade union movement should be to ensure the development of the social and economic well-being of all workers and that the occupational and economic interests which workers and their organizations defend do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. [See Digest, op. cit., paras. 27 and 29.]

426. As regards the allegations concerning the arrest and deportation of trade union leaders and activists of the UTG, the Committee recalls that the prolonged detention of persons without bringing them to trial because of the difficulty of securing evidence under the normal procedure is a practice which involves an inherent danger of abuse; for this reason it is subject to criticism. [See Digest, op. cit., para. 90.] It recalls that it should be the policy of every government to ensure observance of human rights and especially of the right of all detained or accused persons to receive a fair trial at the earliest possible moment. [See Digest, op. cit., para. 96.] The Committee has always attached great importance to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences. [See Digest, op. cit., para. 109.]

427. In this case, the Committee notes with serious concern the slowness of the preliminary proceedings and the obstacles to the functioning of the trade union organization of which the persons concerned were members following the detention of its leaders.

428. The Committee also recalls that in many cases where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the governments' replies amounted to general denials of the allegation or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegation. [See Digest, op. cit., para. 111.] The Committee has on many occasions pointed out that, where persons have been sentenced on grounds that have no relation to trade union rights, the matter falls outside its competence. It has, however, emphasized that whether a matter is one that relates to the criminal law or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. This is a question to be determined by the Committee after examining all the available information and, in particular, the text of the judgement. [See Digest, op. cit., para. 114.]

429. In these circumstances, the Committee insists that the Government drop charges pending against these trade union leaders and activists and requests the Government to keep it informed in this regard.

430. The Committee requests the complainant to indicate whether the other persons mentioned in the complaint are members of workers' organizations.

The Committee's recommendations

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

The Committee notes with serious concern the slowness of the preliminary proceedings against four trade union leaders and activists who were arrested in April-May 1997. The Committee insists that the Government drop the charges pending against these trade union leaders and activists and requests the Government to keep it informed in this respect.
The Committee requests the complainant to indicate whether the other persons mentioned in the complaint are members of workers' organizations.

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)
-- the Serikat Buruh Sejahtera (SBSI) and
-- the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF)

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

432. The Committee examined this case at its meetings in March 1995 [see 297th Report, paras. 484-537, approved by the Governing Body at its 262nd Session (March-April 1995)], March 1996 [see 302nd Report, paras. 447-479, approved by the Governing Body at its 265th Session (March 1996)], November 1996 [see 305th Report, paras. 327-371, approved by the Governing Body at its 267th Session (November 1996)] and November 1997 [see 308th Report, paras. 404-450, approved by the Governing Body at its 270th Session (November 1997)], during which it drew up interim conclusions.

433. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) presented new allegations in a communication dated 6 November 1997. The World Confederation of Labour (WCL) did the same in a communication dated 10 March 1998. It provided additional information in a communication dated 25 May 1998.

434. The Government furnished its observations in a communication dated 16 February 1998.

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

A. Previous examination of the case

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

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

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

The Committee is deeply concerned that no action has been taken by the Government to remedy the situation of workers in Indonesia which is still characterized by serious and worsening infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.
The Committee recalls that Indonesian legislation, which imposes a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprises requirements that are so stringent as to constitute a major limitation to freedom of association and collective bargaining. The Committee would therefore once again urge the Government to eliminate such impediments so as to ensure that the right of workers to organize and bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.
As regards the specific case of the SBSI, the Committee once again urges the Government to take appropriate steps to ensure that it is granted registration without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.
The Committee urges the Government to initiate an independent inquiry in order to clearly establish the reasons for Mr. Mulyono's dismissal and, if it appears that he was dismissed for legitimate trade union activities, to take all the necessary measures to grant him the option of being reinstated in his post without delay. The Committee requests the Government to keep it informed in this respect.
The Committee urges the Government to indicate without delay whether the 16 workers who were dismissed from the Southern Cross Textile Industry in April 1993 were members of the SBSI and if so to ensure that they are reinstated in their jobs, if they so wish. The Committee requests the Government to keep it informed in this respect.
The Committee urges the Government to provide without delay information on: (i) Messrs. Mohammad Ali, 19 (PT Perindoni) and Mulyadi, 24 (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan; and (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee requests the Government to keep it informed in this regard.
Noting that the Government expects that its investigation into Mrs. Marsinah's homicide will be resolved shortly and that the perpetrator will be punished accordingly, the Committee asks the Government to provide information on developments as a matter of urgency. Moreover, the Committee requests the Government to institute an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over four years ago with a view to punishing those responsible; it requests the Government to keep it informed of the results thereof.
Recalling the importance of the principle of a prompt and fair trial by an independent and impartial judiciary, and believing that under the cover of allegations of subversive activities, the charges brought and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan and the July 1996 events in Jakarta and to have him released. The Committee further calls on the Government to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities as soon as he is released from hospital. The Committee requests the Government to keep it informed in this respect.
The Committee once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director Research, Santosa, Region Coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.
The Committee urges the Government to provide information on the situation of Ms. Dita Sari and Mr. Coen Pontoh, two independent union officials, who were allegedly arrested and imprisoned further to their participation in industrial action, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.
The Committee calls on the Government to provide information on the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia (PT PSI) in Medan on 11 July 1997 on account of their SBSI membership. It urges the Government to take the necessary steps to ensure that these 18 workers are duly reinstated if they are indeed members of the SBSI.
In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the SBSI to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.
The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.

B. The complainants' further allegations

439. In its communication of 6 November 1997, the IUF contends that on 19 September 1997 two IUF officials -- Ma Wei Pin and Greg Sword, Secretary and President, respectively, of the IUF Asia/Pacific Regional Organization, were detained by police while attending the 2nd Congress of the independent trade union confederation SBSI in Jakarta. After the union congress was broken up by police in riot gear, Ma Wei Pin and Greg Sword were taken to the central Jakarta police station and subsequently kept under police guard until being escorted to the airport on 21 September 1997, from whence they returned to Australia. No charges were laid, nor were they told the reason for their detention.

440. The IUF explains that Ma Wei Pin and Greg Sword (who is also National Secretary of Australia's National Union of Workers and Vice-President of the Australian Council of Trade Unions (ACTU)) attended the SBSI Congress to affirm the IUF's support for freedom of association in Indonesia and in solidarity with SBSI Chairman, Muchtar Pakpahan, who is currently on trial on trumped-up "subversion" charges for which he faces a possible death penalty. The IUF asserts that their detention, and the police action against the peaceful union Congress, constitute a grave violation of basic democratic and trade union rights. Moreover, the actions of the Government also violated the right of the IUF as an international organization of workers to meet and consult with organizations of workers in Indonesia. This action is a clear violation of the freedom of association of both the SBSI, whose Makanan, Minuman, Periwisata, Restaurant, Hotel (Food, Drink, Tourism, Restaurant, Hotel) Federation is affiliated to the IUF, and of the IUF itself.

441. In its communication of 10 March 1998 the WCL states that it has been informed by its affiliate, the SBSI, of the arrest and detention of the following leaders of the independent union: Ms. Farah Diba (Head of Women and Child Labour Department of SBSI); Mr. Yudi Rahmat (Vice-Chairman of the National Board of SBSI); Mr. Yudi Hermanto (Chairman of the SBSI in Padang); Mr. Sukirman (SBSI member from Lampung); Mr. Sanusi (SBSI member of Tanjung Priok-Jakarta) and Messrs. Seno, Mahmut and Sumantri (activists of the SBSI local branch in Serang, West Java).

442. More specifically, the WCL alleges that Ms. Diba was arrested by the Jakarta regional police (POLDA) on 8 March 1998 for staging a street rally in line with the SBSI's protest campaign against rising prices and for decent living conditions of workers. According to Mr. Aritonang, spokesman for the Jakarta police, she will be charged under section 510 of the Criminal Code for conducting an unauthorized demonstration. Section 510 carries a maximum penalty of two weeks' imprisonment. Furthermore, Messrs. Rahmat and Hermanto were arrested on 9 March 1998 for holding an illegal meeting and distributing protest letters to the public. They have not yet been formally charged but the WCL fears that they will be charged under the infamous anti-subversion law which carries a maximum death penalty. As for Messrs. Sukirman and Sanusi, they were arrested on 10 March 1998 and are presently facing police questioning. Mr. Sukirman was arrested because he tried to set up an SBSI section at the plant level in Lampung Utara (South Sumatra). Finally, Messrs. Seno, Mahmut and Sumantri were detained on 10 March 1998 by the police of Serang City at around 1 a.m. SBSI documents which they were carrying were confiscated by the police. The SBSI has no additional news on them.

443. The WCL asserts that the violation of trade union rights in Indonesia has not only been systematic but also particularly brutal. In recent months, this anti-union repression has intensified within the context of the re-election of President Suharto and the ongoing financial crisis facing the country which has witnessed a rising social mobilization of workers, students, NGOs and civil society as a whole. The WCL points out that it is against this background that the SBSI has been waging a campaign for its recognition, the release of its President Muchtar Pakpahan, an end to massive dismissal of workers and to nepotism and corruption in Indonesia. This latest upsurge of repression of SBSI leaders in the exercise of their legitimate trade union activities constitutes once again a violation of the Government's commitments to the ILO. The WCL concludes by insisting on the immediate release of all these detained trade unionists and the respect of freedom of association principles by the Government.

444. Finally, in a communication dated 25 May 1998, the WCL indicates that Mr. Muchtar Pakpahan was released by the Indonesian Government along with a number of other SBSI leaders and activists.

C. The Government's further reply

Legislative impediments preventing workers
from establishing organizations of their own
choosing (308th Report, paragraph 450(b))

445. The Government states that existing labour laws and regulations provide adequate protection for the right to organize and to bargain collectively of workers. Moreover, to facilitate the growth of trade unions, the Minister of Manpower issued Regulation No. 1 of 17 January 1994. Based on this regulation, workers may establish an independent and democratic union in each respective company freely and without any requirement of affiliating with another trade union. According to the data available up to December 1997, 1,230 independent unions have been established at the company level. The newly established company union is required only to submit information on its organization status and members of its executive to the Ministry of Manpower. At the same time, soon after the union is established, it is able to perform its functions and negotiate with employers on drafting collective agreements. Furthermore, the Government points out that sections 27 to 35 of the new Labour Law No. 25 of 1997 stipulates, inter alia, the following: that each worker has the right to organize freely and become a member of a trade union; that each company union is established from the workers, by the workers and for the workers in a democratic way based on a sector of industry; that employers are prohibited from restricting the establishment of trade unions; and that a trade union has the main functions of drawing up collective labour agreements and representing workers in the settlement of industrial disputes.

Information on Mr. Mulyono (308th Report,
paragraph 450(d))

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

Situation prevailing at the Southern Cross Textile
Industry (308th Report, paragraph 450(e))

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

Government investigation into Mrs. Marsinah's death
(308th Report, paragraph 450(g))

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

Information on Mr. Muchtar Pakpahan
(308th Report, paragraph 450(h))

449. The Government once again insists on the fact that the charge brought against Mr. Pakpahan in connection with the riot of 27 July 1996 was primarily linked to his position as Chairman of the Steering Committee of MARI (Majelis Aksi Rakyat Indonesia) or Indonesian People's Action Council, and not linked merely to his position as Chairman of the SBSI. The Government points out that he is charged with violating section 1(3) of Act No. 11/PNPS/1963 on combating subversive activities. This case therefore is not related to the struggle for labour but is of a political nature.

D. The Committee's conclusions

450. At the very outset, the Committee must express its serious concern over the fact that the Government has not replied at all to a certain number of allegations or alternatively has replied in a superficial manner to a certain number of other allegations by merely repeating information previously provided. The Committee reminds the Government that the purpose of the procedures established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure that this freedom is respected in law and in fact. While these procedures protect governments against unreasonable accusations, governments on their side must recognize for their part the importance for their credibility of formulating for objective examination detailed replies to such allegations made against them. [See First Report of the Committee, para. 31.] The Committee therefore urges the Government to ensure in future when providing replies to allegations made against it that it present complete, detailed and relevant observations that address the allegations raised in the complaint so that the Committee can proceed to examine these matters in full and considered knowledge of all the facts.

451. The Committee wishes to recall that this case addresses very serious allegations of continuous violations of trade union rights in Indonesia concerning 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, the ongoing restrictions on collective bargaining and strike action and various acts of anti-union discrimination including dismissals. Furthermore, the Committee wishes to recall its deepest concern over the extreme seriousness of the allegations referring to the murder, disappearance, arrest and detention of a number of trade union leaders and workers.

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

453. In these circumstances, while noting that certain positive steps have recently been taken by the Indonesian authorities with regard to freedom of association, the seriousness of the renewed allegations leads the Committee to believe that the general situation of workers in Indonesia is still characterized by serious infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice, including, inter alia, the arrest, imprisonment and harassment of workers and trade union leaders.

454. As regards the issue of legislative impediments preventing workers from establishing organizations of their own choosing, the Committee notes that, for the most part, the Government merely repeats information provided in its previous report, namely that workers may freely establish an independent and democratic union at the company level based on Ministerial Regulation No. 1 of 17 January 1994. According to available data, up to December 1997 there are about 1,230 such unions at the company level which in addition are not required to be affiliated with another trade union. The Government adds that the new labour law recognizes, inter alia, the right of each worker to organize freely.

455. The Committee notes however that section 33 of this new Law on Manpower Affairs which was promulgated on 3 October 1997 and which will take effect as of 1 October 1998 stipulates that "a workers' union in a company and an association of workers' unions must be registered with the Government pursuant to the prevailing laws" and that this new Law does not appear to contain any provision repealing Ministerial Regulation No. 03/MEN/1993 which provides that, to be registered, a trade union must have at least 100 units at the plant level, 25 organizations at the district level and five organizations at the provincial level; alternatively, it must have at least 10,000 members throughout Indonesia (section 2(a)). Section 2(b) of the same Regulation provides that a federation must comprise at least ten such unions in order to be registered. The Committee therefore feels bound to remind the Government once again that the Indonesian trade union registration system at the national level comprises requirements that are so stringent as to constitute a major limitation to freedom of association since very few trade unions can see their establishment legally recognized. Moreover, the Committee must emphasize in the strongest possible terms to the Government that the legal requirement according to which a trade union is obliged to obtain the recommendation of the Serikat Pekerja Seluruh Indonesia (SPSI) in order to secure registration (under the terms of section 2(c) of Ministerial Regulation No. 03/MEN/1993) constitutes an obstacle to the free establishment of organizations and is, therefore, contrary to freedom of association. The Committee deeply regrets that the new Law on Manpower Affairs of 3 October 1997 does not repeal the above-mentioned legal impediments which 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.

456. Furthermore, the Committee notes with regret that the legal impediments described in the preceding paragraph still constitute a major obstacle to collective bargaining since under the terms of section 48(1) of the Law on Manpower Affairs of 1997, a collective labour agreement may only be drawn up by an employer and a registered workers' union. Consequently, the Committee would stress, like the Committee of Experts on the Application of Conventions and Recommendations (see, for example, observation, Report III, Part 1A of 1998, pages 241-242 of the English text) and the Conference Committee on the Application of Standards [ILC, 85th Session, 1997, Provisional Record No. 19, pp. 106-114], that the restrictions on free collective bargaining imposed by Regulation No. 03/MEN/1993 on registered trade unions at the plant, district and provincial levels, constitute a flagrant violation of the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, ratified by Indonesia.

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

458. Turning to the specific case of the Serikat Buruh Sejahtera Indonesia (SBSI) which has been awaiting its registration for over five years, the Committee deeply deplores that the Government does not even address this very serious issue in its reply. For its part, the Committee wishes to recall that it had noted during its previous examinations of this case [see 297th Report, para. 530; 302nd Report, para. 472, 305th Report, para. 363 and 308th Report, para. 437], that although the legal requirements for registration were very stringent and constituted a serious obstacle to freedom of association, the SBSI had met them all except for obtaining the SPSI's recommendation which in any event was not a valid requirement being contrary to freedom of association principles. The Committee therefore would insist yet again that any government position which favours one organization, in this case the SPSI, or prevents workers from establishing organizations of their own choosing constitutes an act of anti-union discrimination and is contrary to freedom of association principles. The Committee therefore urges the Government to take appropriate steps to ensure that the SBSI is granted registration as a trade union confederation without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.

459. With regard to the situation of Mr. Mulyono who was dismissed from PT Golden Overseas Textile four years ago (6 May 1994), the Government replies that this issue is settled, since based on the agreement reached between the parties, Mr. Mulyono accepted the amount of Rs.400,000 in compensation for his termination of employment by the company. While noting that Mr. Mulyono accepted compensation in September 1994, the Committee wishes to point out that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 707].

460. Regarding the alleged acts of anti-union discrimination carried out against workers of the Southern Cross Textile Industry (SCTI) found to be members of the SBSI, the Committee recalls that the company memorandum according to which action would be taken against any worker in the company found to be a member of the SBSI or openly or covertly organizing for the SBSI was circulated five-and-a-half years ago (23 November 1992). The Committee once again feels obliged to recall that Convention No. 98, ratified by Indonesia, provides that particular protection must be given to workers against dismissal or other prejudices by reason of union membership. Noting that the Government merely repeats its previous statement that 16 workers were dismissed from the SCTI in April 1993, the Committee urges the Government to ensure that these dismissed workers are reinstated in their jobs or similar alternative jobs, if they so wish, and if this is not possible due to the time that has lapsed since the dismissals took place, to ensure that they receive full compensation. The Committee requests the Government to keep it informed in this respect.

461. As regards the arrest and detention of workers involved in the April 1994 events in Medan, the Committee deplores the fact that the Government still has not provided any information on Messrs. Mohammad Ali (PT Perindoni) and Mulyadi (PT Ganda Seribu) who were allegedly arrested and detained in connection with those events. The Committee further deplores the fact that the Government has not provided information requested by the Committee on four previous occasions and which concerns the outcome of the trials of Messrs. Icang and Suryandi whose arrests were allegedly related to the Spring 1994 events in Medan. They were accused of having illegally gathered people without the appropriate permit. The Committee therefore once again urges the Government to provide without delay information on (i) Messrs. Mohammad Ali (PT Perindoni) and Mulyadi (PT Ganda Seribu); and (ii) the outcome of Messrs. Icang's and Suryandi's trials, who were allegedly detained in connection with the April 1994 events in Medan. The Committee requests the Government to keep it informed in this regard.

462. As regards the investigation into the homicide of Mrs. Marsinah, a labour activist, which occurred over five years ago, the Committee profoundly deplores that the circumstances of her death have still not been elucidated by a Government investigation into the matter which commenced in June 1995. In this respect, the Committee would draw the Government's attention to the fact that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. Moreover, the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest, op. cit., paras. 51 and 55]. Noting with deep regret that the Government has not reported on any progress made in its investigation in shedding any light on this extremely serious incident, the Committee urges the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over five years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.

463. With regard to the specific situation of Mr. Muchtar Pakpahan, the Committee had noted during its previous examination of this case that there were two sets of allegations relating to his case. First of all, although the Supreme Court in September 1995 had overturned two lower court sentences against Mr. Pakpahan on the charge of inciting mass labour unrest in Medan in April 1994, thereby leading to his release after spending more than nine months in prison, the Committee had learnt with deep concern that on 25 October 1996, the Court had reversed its earlier decision and sentenced Mr. Pakpahan to four years' imprisonment on the same charge for which he had previously been released. Noting that the Supreme Court's decision had been influenced by political factors as well as by personal rivalries within the Court, the Committee had deplored this turn of events and had urged the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events. Deeply regretting that the Government has not provided any observations in this respect, the Committee once again urges the Government to drop the above charges against Mr. Pakpahan.

464. In addition, the Committee had noted during its previous examination of this case that although the more recent trial against Mr. Pakpahan, who was charged with subversion on 2 August 1996 in connection with riots which occurred in July 1996 in Jakarta, had been postponed on account of Mr. Pakpahan's poor health, the charges against him had not been dropped. The Committee had expressed its deepest concern since such a subversion charge carries a maximum sentence of the death penalty. Moreover, the Committee had deplored the fact that the Government has not commented on the complainants' lengthy explanations as to why the proceedings of the trial which opened in Jakarta on 12 December 1996 did not meet internationally accepted standards on fair trials and had reminded the Government of the great importance it had always attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists were charged with political or criminal offences. The Committee deeply regrets that the Government simply repeats information already provided, namely that the charge brought against Mr. Pakpahan in connection with the riots of 27 July 1996 was not linked to his position as Chairman of the SBSI. For its part, the Committee considers, as before, that the above events complete the picture of active anti-union discrimination on the part of the Government vis-à-vis Mr. Pakpahan and that under the cover of allegations of subversive activities, the charges brought against and the measures taken against Mr. Pakpahan are linked to his trade union activities. The Committee therefore once again urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the July 1996 events in Jakarta and to ensure that he can exercise freely his legitimate trade union activities. The Committee also requests the Government to drop any charges still maintained against the other SBSI leaders and activists. The Committee requests the Government to provide information in this respect as a matter of urgency.

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

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

467. Deeply regretting that the Government has not replied to the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia in Medan on 11 July 1997 on account of their SBSI membership, the Committee calls on the Government once again to provide this information without delay; if it appears that these 18 contract labourers are members of SBSI, the Committee strongly urges the Government to take the necessary steps to ensure that they are duly reinstated in their jobs.

468. In addition, the Committee would request the Government to provide without delay its observations on the most recent allegations submitted by the IUF in a communication dated 6 November 1997 on the detention of the Secretary and President of the IUF Asia/Pacific Regional Organization on 19 September 1997. The Committee would further request the Government to reply to the allegations presented by the WCL in a communication dated 10 March 1998 concerning the arrest and detention of eight SBSI leaders and activists in the beginning of March 1998 on account of their legitimate union activities.

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

470. The Committee notes from the WCL's communication dated 25 May 1998 that Mr. Muchtar Pakpahan, President of the SBSI, as well as a certain number of other SBSI leaders and activists, have very recently been released from prison. The Committee would request the Government to provide the names of all the other SBSI leaders and activists who have been released from prison. The Committee takes note of these developments with interest and considers that they constitute an important and positive step with regard to freedom of association in Indonesia. The Committee expresses the firm hope that this will be but one of a series of measures taken by the Government which will contribute to the positive development of the trade union situation in Indonesia and to the full respect of freedom of association principles.

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

472. Finally, the Committee notes that section 35 of the new Law on Manpower Affairs, which will enter into force on 1 October 1998, stipulates that "provisions on workers' unions shall be regulated further in the law". It is therefore the Committee's understanding that issues relating to the right to organize will be regulated further through the enactment of other provisions, ministerial regulations or the like. The Committee thus hopes that these new legal provisions/regulations will fully comply with freedom of association principles. In this respect, the Committee would suggest that the Government consider availing itself of the technical assistance of the ILO to assist it in ensuring compliance of draft labour legislation with freedom of association principles.

The Committee's recommendations

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

While noting with interest that certain positive steps have recently been taken by the Indonesian authorities, the Committee is still deeply concerned that the situation of workers in Indonesia remains characterized by serious infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.
The Committee recalls that Indonesian legislation, which imposes a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprises requirements that are so stringent as to constitute a major limitation to freedom of association and collective bargaining. The Committee would therefore once again urge the Government to eliminate such impediments (such as section 2(a), (b) and (c) of Ministerial Regulation No. PER-03/MEN/1993) so as to ensure that the right of workers to organize and bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.
As regards the specific case of the SBSI, the Committee once again urges the Government to take appropriate steps to ensure that it is granted registration without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.
The Committee urges the Government to ensure that the 16 workers who were dismissed from the Southern Cross Textile Industry in April 1993 are reinstated in their jobs or similar alternative jobs, if they so wish, and if this is not possible due to the time that has lapsed since the dismissals took place, to ensure that they receive full compensation. The Committee requests the Government to keep it informed in this respect.
The Committee urges the Government to provide without delay information on: (i) Messrs. Mohammad Ali (PT Perindoni) and Mulyadi, (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan; and (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee requests the Government to keep it informed in this regard.
The Committee urges the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah, a labour activist, which occurred over five years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.
Recalling the importance of the principle of a prompt and fair trial by an independent and impartial judiciary, and believing that under the cover of allegations of subversive activities, the charges brought and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee once again urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan and the July 1996 events in Jakarta. The Committee further calls on the Government to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities. The Committee also requests the Government to drop any charges maintained against other SBSI leaders and activists. The Committee requests the Government to provide information in this respect as a matter of urgency.
The Committee once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.
The Committee once again urges the Government to provide information on the situation of Ms. Dita Sari and Mr. Coen Pontoh, two independent union officials, who were allegedly arrested and imprisoned further to their participation in industrial action, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.
The Committee once again calls on the Government to provide information on the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia (PT PSI) in Medan on 11 July 1997 on account of their SBSI membership. It urges the Government to take the necessary steps to ensure that these 18 workers are duly reinstated if they are indeed members of the SBSI.
The Committee requests the Government to provide information without delay on: (i) the alleged detention on 19 September 1997 of two IUF officials; and (ii) the alleged arrest and detention of eight SBSI leaders and activists on 8, 9 and 10 March 1998, respectively.
In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the SBSI to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.
Noting with interest that Mr. Muchtar Pakpahan, President of the SBSI, was released from prison on 25 May 1998, the Committee requests the Government to provide the names of all other SBSI leaders and activists who have been released.
The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.
Noting that issues relating to the right to organize of workers will be regulated further through the enactment of new legal provisions under the terms of the new Law on Manpower Affairs, the Committee would suggest that the Government consider availing itself of the technical assistance of the ILO to assist it in ensuring that draft labour legislation fully complies with freedom of association principles.
The Committee requests the Government to ensure that the recent steps taken by it to release certain trade union leaders and activists will be but one of a series of measures taken in the future which will contribute to the positive development of the trade union situation in Indonesia and to the full respect of freedom of association principles.

Case No. 1931

Interim report

Complaint against the Government of Panama
presented by
-- the International Organization of Employers (IOE) and
-- the National Council of Private Enterprise (CONEP)

Allegations: Legislation restricting the rights of employers
and their organizations

474. The complaint appears in a joint communication from the International Organization of Employers (IOE) and the National Council of Private Enterprise of Panama (CONEP) dated 12 June 1997.

475. The Government sent its observations in a communication dated 8 March 1998.

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

A. The complainants' allegations

477. In its communication of 12 June 1997, the International Organization of Employers (IOE) and the National Council of Private Enterprise of Panama (CONEP) allege that Ministerial Decree No. 252 of 30 December 1971, published in the Gaceta Oficial (Official Gazette) No. 17040 of 18 February 1972, which was amended by Act No. 44 of 12 August 1995, contains provisions which contradict international labour Conventions Nos. 87 and 98.

478. The complainant organizations point out that section 493 establishes, without the right to any appeal whatsoever, the immediate shutting down or closure of undertakings, establishments, branches or works affected by a strike, in contravention of Article 3 of Convention No. 87, which establishes the right of employers to organize their administration and activities and to formulate their programmes, and of the principle of the inviolability of the domicile of the social partners.

479. In this way, once a strike is initiated, the labour administration authorities immediately seal the doors of the establishments or businesses of employers, including those giving access to the administrative and management offices. The labour administration authorities order the police authorities to "guarantee that the undertaking remains closed and give due protection to persons and property;". In other words, the police authorities must guarantee that employers are not able to enter their businesses.

480. In the same way, section 497 of the above-mentioned Decree orders the closing down of undertakings, establishments, branches or works if a strike is declared by an industrial trade union or even an enterprise union. This affects not only the employer but the other workers who are not on strike. This situation of total closure does not encourage voluntary collective bargaining and makes it more difficult to resolve a dispute. The employer cannot be expected to want to negotiate a rapid and effective resolution of a dispute if he is deprived of his right of free access to his property and his freedom of movement is limited. The situation caused by the closure order does not encourage good faith in bargaining.

481. The complainant organizations believe that such a closing down of enterprises is not a symbolic act. The labour administration authorities apply the concept of "immediate closure" by placing long plastic or paper seals on all doors providing access to all the industrial and commercial installations and offices affected by the strike. These seals may be removed only by the labour inspectors, when the strike is over, or, temporarily, when the workers allow, under their supervision, essential work to be carried out for the maintenance or repair of equipment and machinery. This affects the autonomy of one of the social partners in the bargaining process.

482. Furthermore, the total closure of enterprises prevents the recruitment of third parties to carry out maintenance work. Strikers usually give permission for this in exchange for concessions from the employers.

483. The IOE and CONEP point out that the closing down of enterprises involves the paralysis of all administrative or financial activities, thus jeopardizing the future of the enterprises or businesses. During a strike, employers are not able to use their offices, computer equipment, files, or any of their own facilities which are necessary for the administration of their business. Thus employers have no other alternative but to use their own homes or rented premises to coordinate their negotiations and carry out the transactions which are indispensable to the survival of their enterprises. In doing so, however, they run the risk that the strikers accuse them of having infringed the closure order.

484. Furthermore, the complainant organizations allege that section 510 compounds the infringements of the principle of freedom of action of employers by establishing two suppositions which can be used to force them to pay the wages which strikers do not receive during a strike: the first, if workers have gone on strike to demand fulfilment of a collective labour agreement, direct agreement or arbitration award; and the second, if employers have infringed the order for the total closure of enterprises as described above.

485. The second supposition of section 510 concerns the treatment of legal disputes or those concerning a point of law which, in accordance with the provisions of section 420, shall be bound by the rules established by the Labour Code. However, none of the provisions contained in sections 426 to 447 of Decree No. 252 requires workers' trade union organizations to present a copy of the unfulfilled ruling or award as a requirement for initiating the conciliation procedure. In other words, the workers may subject the employer to a conciliation procedure by accusing him of imaginary or alleged violations or infringements. There is no standard which allows the labour administration authorities to reject the presentation of a statement of claims, and the said presentation automatically initiates the conciliation procedure. Section 433 establishes without exception that "a statement of claims cannot be refused or dismissed". The labour administration authority may point out any flaws or defects in the statement but must do so immediately. In practice, the labour administration authority may insist that these flaws or defects are made good, but at no time and in any circumstance is it empowered to reject outright a defective statement of claims or one in which allegations are made concerning imaginary or unfounded infringements.

486. Section 420 offers the parties to a dispute the option of requesting mediation by the labour administration authorities in the event of a legal collective dispute. However, the workers may commence the conciliation procedure if the dispute is of such a nature as to admit the possibility of exercising the right to strike. But the law does not define which legal disputes may give rise to the exercise of such a right.

487. Decree No. 252 does not contain any standard which indicates how employers may present a statement of claims if a trade union of workers fails to comply with what has been agreed or infringes any legal provision. Decree No. 252 does not contain any conciliation procedure enabling the employers to exercise, as a last resort, their right to lockout.

488. In practice, whenever workers initiate a strike, the order for the total closing down of the establishments of employers prevents the latter from having free access to their property. The closing down of their establishments or offices is a serious interference by the authorities in the activities of employers and an infringement of the right to the inviolability of their domicile; it restricts their freedom of action and their right to free movement; it is incompatible with the principle of bargaining in good faith and the principle of free and voluntary bargaining. All this seriously undermines the guarantees established by Convention No. 87 on behalf of employers.

489. The complainants also allege that section 427 establishes that the statement of claims presented by the workers' trade union organization must contain, amongst other things, the following: "3. Name, identity card number and address of the delegates designated for the conciliation procedure who shall be not less than two in number and not more than five, accompanied, if they think it necessary or advisable, by a trade union adviser and a legal adviser ...". This provision applies by analogy to the composition of the bargaining group of the employers. It directly violates the principle of free and voluntary collective bargaining as established by Article 4 of Convention No. 98. The complainants also refer to the principles of the Committee on Freedom of Association. According to the complainants, employers should have the freedom to establish their own bargaining team and to be assisted by the technical, financial and legal advisers they consider appropriate for the defence of their interests, without any limitations being placed on the number and status of such persons.

490. Finally, the complainant organizations allege that although section 443 of Decree No. 252 provides for the end of conciliation if and when "... the parties come to an arrangement or agree to proceed to arbitration", section 452 establishes that employers have to accept that the dispute shall be submitted, as a whole or in separate parts, for arbitration if the workers "before or during the strike, apply to the regional directorate of labour of the General Directorate of Labour for arbitration". This provision is contrary to the principle of free and voluntary bargaining. In this respect, the complainant organizations refer to the principles of the Committee on Freedom of Association and emphasize that arbitration, in order to be effective and efficient, must be the result of the will of both parties; similar objections could also be made against a provision enabling the employers to impose arbitration, before or during a strike.

B. The Government's reply

491. In its communication of 8 March 1998, the Government states that article 65 of the Political Constitution of the Republic of Panama establishes the right to strike and at a secondary level, as a legal reserve, that "the law shall regulate its exercise". To this end, the Labour Code devotes a title to the right to strike, which comprises sections 475 to 519, in addition to certain references contained in other provisions, which include those relating to the statement of claims, the conciliation procedure, arbitration, etc. All these provisions were subject to analysis in the discussion and preparation of the legal document which became Act No. 44 of 12 August 1995 "to establish standards to regulate and modernize labour relations", which contains some reforms to the Labour Code, including standards respecting collective labour disputes, which is the subject referred to in the present complaint.

492. The Government adds that this Act was the result of a consensus and tripartite negotiation in which the main participants, the employers and the workers, played an active part. Within this process, which was fully carried out, no modification was made of the standards to which reference is made in this complaint, although the subject was sometimes mentioned. The above-mentioned situation makes it difficult for the Government, which is respectful of conciliation and consensus, to discuss the matter to which reference is made in the complaint, which is also a very sensitive one since it deals with the right to strike, a fundamental principle of labour relations and which has been enshrined, protected and preserved in different international labour Conventions.

C. The Committee's conclusions

493. In this case the complainant organizations allege that certain provisions of the Labour Code regulating collective disputes and strikes contradict Conventions Nos. 87 and 98. The Committee notes the observations of the Government and in particular that the provisions to which the complainants are opposed were the result of consensus and tripartite negotiations in which representatives of the employers and workers participated actively as the main parties. However, the Committee notes that the legislative provisions referred to by the Government have been in force since 1971 and have not been amended by Act No. 44.

494. In this respect, the Committee would like to recall that its mandate "consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 6]. The Committee has also considered that "where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO's technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the Constitution of the ILO and the applicable Conventions" [see Digest, op. cit., para. 8]. The Committee believes that these principles also apply to cases in which the legislation in question has been the subject of consultation or negotiations with the social partners before being adopted. For this reason, the Committee will now examine point by point the legislative provisions to which the complainants object. However, the Committee wishes to emphasize in a general manner that the legislation complained of is not sufficiently clear with regard to certain aspects and that it regulates industrial relations in too much detail and constitutes a significant interference.

Immediate closing down of the undertaking, establishment,
branch or works in the event of a strike, guaranteed by the
police authorities

495. The Committee notes that sections 493 and 497 establish the following:

Section 493. A strike shall produce the following legal effects:

immediate shutting down or closure of the undertaking, establishment, branch or works affected. Once the strike has commenced, the Inspectorate of Labour or the regional directorate of labour or the General Directorate of Labour shall immediately give orders to the police authorities to guarantee that the undertaking remains closed and give due protection to persons and property; (...)

Section 497. If the strike is declared by an enterprise or industrial trade union, as prescribed in section 477, it shall result only in the closing down of those undertakings, establishments, branches or works in which the strikers fulfil the conditions laid down in clause 2 of section 476 ...

496. The Committee notes that according to the legislation, and in the event of a legal strike, when strikers constitute the majority of the workers in an undertaking, establishment, branch or works, the closure shall occur immediately and is guaranteed by the police. In this respect, the Committee takes note of the statements by the complainants that this legal regulation is detrimental to workers who are not on strike, prevents the carrying out of maintenance work on the equipment of the enterprise and, by paralysing all administrative and financial activity by the employers -- who are not able to enter their offices and installations -- jeopardises the survival of enterprises. In previous cases concerning the exercise of the right to strike, the Committee has criticized "coercion of non-strikers in an attempt to interfere with their freedom to work" [see Digest, op. cit., 4th edition, 1996, para. 586] and has considered that the minimum services to be maintained in the event of strike, to guarantee the safety of persons and installations and the prevention of accidents (minimum safety service) are normal and acceptable restrictions [see Digest, op. cit., paras. 554 and 555].

497. In these circumstances, the Committee concludes that the closing down of the enterprise, establishment, branch or works in the event of strike as provided for in sections 493(1) and 497 is an infringement of the freedom of work of persons not participating in a strike and disregards the basic needs of the enterprise (maintenance of equipment, prevention of accidents and the right of employers and managerial staff to enter the installations of the enterprise and to exercise their activities). In these circumstances, the Committee requests the Government to take measures without delay to repeal sections 493(1) and 497 of the Labour Code.

Payment of wages to strikers in certain cases

498. The Committee notes that section 510 of the Labour Code establishes the following:

Section 510. A lawful strike declared for any of the following reasons, duly proven by the workers, shall be deemed to be due to the employer's fault:

the reasons specified in clauses 3 or 4 of section 480; or
if the employer does not reply to the statement of claims or withdraws from the conciliation procedure.

[Sections 514 and 515 establish that if the strike is held to be due to the employer's fault, the latter shall be bound to pay all the wages due to the workers affected by the strike.]

499. The other relevant sections of the Labour Code on the matter under examination are the following:

Section 480. A strike shall have one or more of the following objects:

to obtain better conditions of work from the employer;
to obtain a collective agreement;
to demand fulfilment of any collective agreement, direct settlement or arbitration award in an undertaking, establishment, branch or works where it has not been complied with (including (...) compensation, where specified);
to obtain fulfilment of and compliance with any statutory provision which has been ignored or infringed once or repeatedly throughout or in any part of an undertaking, establishment, branch or works (including ... compensation, where specified); (...)

Section 511. A strike shall also be declared to be due to the employer's fault in cases where he/she fails to perform the duties or infringes the restrictions imposed on him/her by sections 493, clause 1 [this section transcribed above refers to the obligation of closing down the enterprise in the event of a legal strike] (...)

500. The Committee notes that the complainant organization opposes the provision of the Labour Code which requires the employer to pay wages when the strike has the following objects: (1) to demand fulfilment of any collective agreement, direct settlement or arbitration award (section 510(1) of the Labour Code); (2) to obtain fulfilment of and compliance with any statutory provision which has been ignored or infringed once or repeatedly throughout or in any part of the enterprise (section 510(1) of the Labour Code); (3) if the employer does not reply to the statement of claims or withdraws from the conciliation procedure (section 510(2) of the Labour Code); and (4) if the employer fails to comply with the obligation of closing down the enterprise in the event of a legal strike (section 511 of the Labour Code). The Committee notes furthermore that as regards these matters the complainant organizations point out that under the current regulations the labour administration authorities are not empowered to reject a flawed statement of claims which alleges imaginary or unfounded infringements of labour standards; and that according to the complainants, the conciliation procedure would be initiated and the strike could then be declared and the employer would have to pay the strike days in the circumstances referred to above.

501. Before examining the allegations relating to the payment of wages of strikers by the employer, the Committee needs clarification and information on the following points: (1) the manner in which sections 510 and 511 of the Labour Code are applied in practice; and (2) the existence of procedures and competent bodies in the event of violations of the legislation or of collective agreements, in the event of disputes over their interpretation or in the event that the employer fails to cooperate in the collective bargaining process. The Committee requests the Government to supply information in this regard.

Legal voids in certain questions

502. The Committee notes that the complainant organizations emphasize the existence of legal voids regarding certain questions concerning collective labour relations (determination of legal disputes which allow the exercise of the right to strike, possibility for the employers to present a statement of claims and the possibility for employers to initiate a conciliation procedure). In this respect, considering that a stable labour relations system should take account of the rights and obligations of both workers' organizations and employers and their organizations, the Committee requests the Government without delay and in consultation with the social partners to take measures with a view to regulating the above-mentioned questions within the framework of the Labour Code.

Limitations on the number of advisers
by the parties in the conciliation procedure

503. The Committee notes that section 427(3) of the Labour Code establishes the following:

Section 427. The statement of claims shall be submitted in triplicate and shall contain the following information:

(...)

name, identity card number and address of the delegates designated for the conciliation procedure who shall not be less than two in number and not more than five, accompanied, if they think it necessary or advisable, by a trade union adviser and a legal adviser; the delegates shall be accredited with sufficient powers to negotiate, bargain and sign any agreement or enter into any arrangement or conclude a collective agreement;

(...)

504. The Committee notes that the complainant organizations state that the above provisions apply also by analogy to employers' delegates and advisers. In this respect, the Committee considers that excessively strict prescriptions on such matters as the composition of the representatives of the parties in the process of collective bargaining may limit its effectiveness and, in particular, believes that this is a matter which should be determined by the parties themselves. The Committee therefore requests the Government without delay and in consultation with the social partners to take measures to amend section 427(3) of the Labour Code accordingly.

Submission of disputes to compulsory arbitration

505. The Committee observes that section 452 of the Labour Code establishes the following:

Section 452. On conclusion of the conciliation procedure, the collective dispute shall be submitted as a whole or in separate parts for arbitration in any of the following cases:

if both parties agree to submit to arbitration;
if the workers, at any time before or during the strike, apply to the regional directorate of labour or the General Directorate of Labour for arbitration.

(...)

506. The Committee notes that clause 2 of section 452 unilaterally allows the workers to submit collective disputes to arbitration and that section 470 stipulates that "the arbitration award shall be a standard-setting instrument having the force of law between the parties". In this respect, the Committee draws the Government's attention to the fact that "compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population" [see Digest, op. cit., 515]. Thus since compulsory arbitration at the request of only one of the parties is a violation of the principles of freedom of association and collective bargaining, the Committee requests the Government without delay to take measures to amend clause 2 of section 452 of the Labour Code.

The Committee's recommendations

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

(a) Observing that the legislation complained of is not sufficiently clear with regard to certain aspects, that it regulates industrial relations in too much detail and constitutes a significant interference, and that certain provisions are contrary to the principles of freedom of association and collective bargaining, the Committee requests the Government without delay and in consultation with the social partners to take the necessary measures to:
1. repeal sections 493(1) and 497 of the Labour Code, which impose the immediate shutting down of the enterprise, establishment, branch or works once a strike has been declared;
2. amend section 452(2) which permits the imposition of arbitration at the request of one of the parties to the collective dispute;
3. amend section 427(3) of the Labour Code, which restricts the composition of the representatives of the parties (delegates and advisers) to the collective bargaining process, so that this issue is determined by the parties themselves;
4. regulate within the framework of the Labour Code matters relating to the determination of legal disputes which permit the exercise of the right to strike, the possibility for employers to present a statement of claims and the possibility for employers to initiate a conciliation procedure.

Before examining the allegations relating to the payment of wages of strikers by the employer, the Committee needs information and clarification on the following points: (1) the manner in which sections 510 and 511 of the Labour Code are applied in practice; and (2) the existence of procedures and competent bodies in the event of violations of the legislation or of collective agreements, in the event of disputes over their interpretation or in the event that the employer fails to cooperate in the collective bargaining process. The Committee requests the Government to supply information in this respect.
The Committee reminds the Government that the technical assistance of the Office is at its disposal, if it so wishes, to assist it in ensuring that the provisions complained of in this case are amended in line with the principles of freedom of association and collective bargaining.
The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the present case.

Case No. 1932

Definitive report

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

Allegations: Anti-trade union dismissals following a strike
in the education sector

508. The complaint is contained in a communication from the Latin American Central of Workers (CLAT) of 1 July 1997.

509. The Government sent its observations in communications dated 30 September 1997 and 17 February 1998.

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

A. The complainant's allegations

511. In its communication of 1 July 1997, the Latin American Central of Workers (CLAT) alleges that, at the end of June 1997, 107 trade union leaders in the education sector and five teachers at the Isabel Herrera Obaldío School were dismissed in contravention of ILO Convention No. 98 following a six-day strike in that sector, although the right of public servants to strike is guaranteed under Panamanian law. The CLAT explains that the decision to strike followed the presentation to the Legislature of draft Education Act No. 98 on which there was no consultation and which undermines teachers' living conditions (by decentralizing the education system, reducing holidays and abolishing the Staff Council).

B. The Government's reply

512. In its communications of 30 September 1997 and 17 February 1998, the Government states that the dispute in the education sector was resolved by an agreement dated 29 July 1997 between representatives of the teaching unions and the Ministries of the Presidency and Education. The Government attaches the text of this agreement and that of Act 28 of 1 August 1997, which established the school education councils and contained various other provisions. The Government states that its intention was to modernize the national education system in order to bring it into line with current educational thinking.

513. The Government adds that, as a result of the agreement, it reinstated all the teachers who had been dismissed.

C. The Committee's conclusions

514. The Committee notes that in the present case, the complainant alleged mass dismissals of teachers following a strike at the end of June 1997.

515. The Committee notes the agreement between the teaching unions and the authorities dated 29 July 1997, transmitted by the Government, which ended the collective dispute in the education sector. The Committee notes with interest that as a result of that agreement, all the teachers who had been dismissed following the strike were reinstated in their posts. The Committee hopes that in future, the authorities will fully take into account the principle according to which "no one should be penalized for carrying out or attempting to carry out a legitimate strike" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 590]. Nevertheless, given that the present case was resolved satisfactorily by a collective agreement and all the teachers who had been dismissed were reinstated in their posts, the Committee considers that this case does not call for further examination.

The Committee's recommendation

516. In the light of its foregoing conclusions, the Committee, while recalling that no one should be penalized for carrying out or attempting to carry out legitimate strike action, invites the Governing Body to decide that this case does not call for further examination.

Case No. 1880

Interim report

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

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

517. The Committee examined this case at its November 1997 meeting and presented an interim report to the Governing Body [see 308th Report, paras. 577-596, approved by the Governing Body at its 270th Session (November 1997)].

518. The complainant subsequently sent new allegations in communications dated 18 November and 15 December 1997.

519. The Government sent new observations in communications dated 31 October and 24 November 1997, 9 March, 17 April and 12 May 1998.

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

A. Previous examination of the case

521. At the November 1997 meeting of the Committee, the following allegations remained pending: (1) various acts of anti-union discrimination and interference against the Ucayali S.A. branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch; and (2) anti-union dismissals and threats in the Eastern Regional Public Electricity Supply Company and Electro Sur Este S.A. (no reply had been received from the Government concerning the latter allegations).

522. Concerning the latter allegations, the Federation of Peruvian Light and Power Workers had alleged that Mr. Jaime Tuesta Linares, secretary of disputes of the Electro Oriente S.A. trade union branch, had been unfairly dismissed by the Eastern Regional Public Electricity Supply Company (Empresa de Servicio Público de Electricidad del Oriente), despite being protected by trade union immunity according to national legislation. The complainant had also alleged that the management of Electro Sur Este S.A. had launched a systematic campaign of threats of dismissal and anti-union harassment of trade union leaders and members, which had caused serious problems for the workers' union branch in Electro Sur Este Abancay. As a result of this campaign, the company had transferred the trade union branch secretary, Mr. Moisés Zegarra Ancalla, to another establishment rather a long way away (Chacapuente-Chalhuanca sub-station), thus preventing him from carrying out his functions as a trade union officer. Finally, the complainant had added that Mr. Adriel Villafuerte Collado, General Secretary of the Electro Sur Este trade union branch, Puno, had been threatened with dismissal by the company, Electro Sur Este S.A. (Puno subregion), for alleged serious misconduct. Despite evidence of innocence provided by the union official, he had been suspended for 30 days without pay as a penalty.

523. The Federation of Peruvian Light and Power Workers had also alleged that in an appeal judgement of 14 August 1996, the Tacna Appeal Court (Corte Superior de Justicia) had found definitively in favour of the Tacna and district branch of the Light and Power Workers' Union, affiliated to the Federation of Peruvian Light and Power Workers, and against Electro Sur S.A., and ordered the latter to pay salary increments to 111 workers, due under the arbitration award of 21 July 1993, as a result of the arbitration process which had followed the collective bargaining for the period 1992-93. The complainant added that, under the judgement varying the judicial decision of 15 May 1995, the parties had agreed, inter alia, to consolidate the arrears in a single exceptional payment of 2,300 new soles, as payment of arrears of wages, and that it would be exempt from social security contributions for IPSS, FONAVI, AFP and income tax, and that, in return, the complainant union branch would drop its action to enforce the court order. The complainant stated that, despite this agreement, Electro Sur S.A. had failed to abide by the above-mentioned agreement and that, in those circumstances, the Tacna and district branch of the Light and Power Workers' Union had been forced to continue proceedings to enforce the court order. The complainant alleged that, in response to the union's action, in an act which was contrary to the exercise of trade union freedoms and the inalienability of workers' rights, Electro Sur S.A., in its letter No. GA-500-97 of 25 August 1997, had arbitrarily abused its powers in designating the non-cessation of legal proceedings as "serious misconduct", threatening to discipline the union representatives and hinting that they would dismiss the union officials if they did not comply with their demands.

524. The Committee had formulated the following conclusions and recommendations [see 308th Report, paras. 589-595]:

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

making the granting of an open-ended contract of employment conditional on workers resigning their membership of the trade union;
the transfer to places other than those specified in their contracts of employment of the majority of workers belonging to the Ucayali S.A. branch of the Light and Power Workers' Union, under the control of the company Electrocentro S.A.;
the hostility towards and obstruction of trade union activity, interference in the internal affairs of the union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements.

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

Concerning the allegation of the inclusion in the list for "collective dismissal" of 19 trade union members, including two members of the negotiating committee for the 1996-97 bargaining round, as well as two members of the executive board, the Committee takes due note that according to the Government, the approved list for termination of contracts affects only 14 workers, five of them having been excluded from the measure at the request of the company, and who are now working normally in the company. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom.

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

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

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

B. New allegations of the complainant organization

525. In its communication dated 18 November 1997, the FTLFP alleges that Mr. Guillermo Barrueta Gómez, Secretary-General of the organization, is the victim of anti-union discrimination by the Electro Sur Este S.A. enterprise which, in violation of the collective agreements in force, unilaterally suspended payment of his allowance for trade union duties on 30 July 1992. After the judicial authorities had ruled twice in favour of Mr. Barrueta Gómez, ordering that he be paid 11,221 new soles, the enterprise lodged an appeal with the Supreme Court of Justice invoking its right to due process and claiming that the proceedings should have been for "cessation of harassment" and not for "payment in soles for non-compliance with collective agreements and an arbitration award". The FTLFP points out that Mr. Barrueta Gómez had been receiving the allowance since 1 July 1991, that the other officers of the FTLFP had received it since then and that the reason given by the enterprise for not paying the trade union allowance to Mr. Barrueta Gómez was the fact that, since this trade union officer lived in Lima, he did not travel from one place to another and therefore was not entitled to this right; according to the complainant however this right arises out of the performance of trade union duties or work of this nature carried out by a trade union officer. The complainant considers the decision of the Chamber of the Supreme Court of Justice declaring the appeal for annulment lodged by the enterprise legitimate to be unlawful.

526. In its communication of 15 December 1997, the FTLFP alleges that in November 1997 the Southern Regional Public Electricity Supply Company (Electro Sur S.A.) dismissed Mr. Walter Linares Sanz, General Secretary of the Tacna branch of the Light and Power Workers' Union, in order to break down the defence of the workers' interests in the proceedings for payment of arrears of wages before the Labour Court of Tacna (in this respect, the complainant states that the Tacna Appeal Court (Corte Superior de Justicia) had already ordered Electro Sur S.A. to pay wage increments to 111 workers due under an arbitration award). Without any evidence whatsoever, the enterprise has accused Mr. Linares Sanz of failing to discharge his duties at work, providing false information to the employer and of a serious breach of discipline for having authorized a representative of the Attorney-General's Office to enter the premises of the enterprise and signing a record as legal representative of the enterprise; the complainant states that the representative of the Attorney-General's Office had come to the enterprise to carry out a procedure in connection with a lawsuit brought by the enterprise against its former financial and administrative manager. According to the complainant, it was shown that Mr. Linares Sanz not only had not authorized the public authorities to enter the premises of the enterprise, but also had not in any way claimed to be the legal representative of the enterprise by signing the record drawn up by the Attorney-General's Office. Moreover, he had not been informed or received any legal or other instructions concerning the imminent procedure resulting from a complaint lodged by the enterprise; he had not failed in his duties by respecting the authority of the representative of the Attorney-General's Office so as not to commit a penal offence; he did not give his employer false information or commit a serious breach of discipline, since he had not even had direct personal, oral or written contact with the representative of the enterprise, but had only placed the fact of his presence on record in the document in question.

C. The Government's reply

527. In its communication of 31 October 1997, the Government refers to the allegations concerning the dismissal of trade union officer Jaime Tuesta Linares in Electro Oriente S.A., threats of dismissal against union members in the Apurimac subregional branch of the Electro Sur Este S.A. enterprise and the threat of dismissal made against Mr. Adriel Villafuerte Collado of the Puno subregional branch of Electro Sur Este S.A. In this respect, the Government states that the legislation in force provides for adequate penalties for non-compliance with labour standards to serve as a deterrent against acts restricting workers' freedom of association. In its written communication, the complainant states that "acts such as this one are expressly prohibited by national law, as stipulated by section 29(a) and section 36 of Presidential Decree No. 003-97-TR, the consolidated text of Act No. 728, respecting productivity and competitiveness, which defines as null and void a dismissal on grounds of trade union membership or participation in trade union activities and allows the trade union member to take legal action and bring a suit for nullity before the Peruvian courts within 30 days of the fact, notwithstanding any agreement to the contrary". Indeed, national legislation fully protects the exercise of freedom of association, which is guaranteed in article 28(1) of the Political Constitution of Peru of 1993. Section 4 of the Collective Labour Relations Act, Legislative Decree No. 25593, likewise recognizes workers' rights to form trade unions and guarantees the exercise thereof. Moreover, section 30 of this Act confers trade union immunity on certain workers who may not be dismissed or transferred to other establishments of the same enterprise without just cause being duly demonstrated or without the worker's consent. Likewise, the consolidated Act respecting labour productivity and competitiveness provides in section 29(a) and (b) that a dismissal shall be null and void if it is based on grounds of trade union membership or participation in trade union activities or the worker's candidacy as a workers' representative or of the worker's acting or having acted in this capacity. Along the same lines, the Penal Code lays down a penalty of imprisonment for persons interfering with the principle of freedom of association, by stipulating in section 168, as amended by the third repealing and final provision of Legislative Decree No. 857, as follows: "A person shall be sentenced to imprisonment of up to two years if he coerces another, through violence or threats, to perform any of the following acts: (1) join or refrain from joining a trade union; (2) perform work without appropriate remuneration; (3) work without observing the industrial safety and health requirements determined by the authorities. A person shall be liable to the same sentence for failing to carry out decisions handed down by the competent authorities, which have not been appealed or have been rendered executory, or if he diminishes or distorts production, simulates reasons for closing the workplace or abandons the workplace in order to terminate employment relationships."

528. As regards protection against acts of interference by the employer, the Government points out that the Collective Labour Relations Act, Legislative Decree No. 25593, restricts the possibilities for the State, employers and representatives of both to commit acts of interference in trade union activities, by providing in section 4 that they shall refrain from committing any act limiting, restricting or impairing, in any way, the workers' right to organize, and to interfere in any manner in the creation, administration or maintenance of the trade unions set up by the latter.

529. The Government states further that, under the legislation in force, the workers are thus afforded appropriate legal means to enforce any right which they may consider to have been infringed by acts or threats on the part of their employer, as long as they comply with the established legal procedures for asserting their claim. Concerning the alleged threats of dismissal against trade union officers, the Government states that the complainant does not provide evidence that such acts were carried out by the representatives of the Electro Sur Este S.A. enterprise; if, however, acts such as those mentioned prove to have been committed, the relevant legislation, as pointed out above, provides full protection to the workers affected. In this specific case, despite the fact that the complainant recognizes that its claim is protected by the national legal system, it has not availed itself of the legal channels to claim the rights which they consider to have been impaired, and a complaint has been brought directly against the State of Peru before exhausting the appropriate legal channels; the Government therefore requests that these allegations be dismissed.

530. In its communication of 24 November 1997, the Government refers to the allegation to the effect that the administrative and financial manager of the Electro Sur S.A. enterprise requested the trade union representatives through a notary to drop the legal proceedings against the enterprise, threatening to discipline the trade union representatives and hinting that they would be dismissed if they did not comply with their demands. In this respect, the Government states that the complainant does not provide relevant documents in support of its allegations, and only mentions the alleged threats on the part of the financial and administrative manager of the Electro Sur S.A. enterprise, without verifying whether such acts actually took place, adequate penalties for such acts being laid down by the legislation in force, as pointed out above. However, in order to avail themselves of this protection, the trade union officers must use the appropriate legal channels to protect those whose rights may have been impaired by acts committed by their employer. The Government therefore requests that the allegations be dismissed.

531. In its communication of 9 March 1998, the Government refers to the Committee's recommendation that it carry out an investigation into the allegations of various anti-union acts and interference against the Ucayali S.A. branch of the Light and Power Workers' Union. In this respect, the Government reiterates its previous information on legal protection against acts of anti-union discrimination and interference. The Government adds that, as regards protection against acts of interference by the employer, the Collective Labour Relations Act, Legislative Decree No. 25593, restricts the possibilities for the State, employers and the representatives of both to interfere in trade union activities, by providing in section 4 that they shall refrain from committing any acts limiting, restricting or impairing in any way the workers' right to strike, and from interfering in any way in the establishment, administration or maintenance of the trade union organizations set up by the latter. The above-mentioned provision is intended to provide effective penalties for any act committed by the employer which jeopardizes the collective rights of workers, and the members of the Ucayali S.A. branch of the Light and Power Workers' Union who consider that their trade union rights have been affected must therefore avail themselves of the appropriate legal channels to ensure that their rights recognized by law are protected.

532. As regards the allegation concerning the refusal by the Electro Ucayali S.A. enterprise to conclude a collective agreement since May 1996, the Committee had requested the Government to send it a copy of the collective agreements subsequently concluded and to do everything possible to work with the parties so that difficulties that arise in the collective bargaining process are overcome much more quickly. In this respect, the Government refers to the information it has already given to the Committee. It reiterates that the collective bargaining process was concluded to the satisfaction of the parties, the agreements having been adopted by direct negotiation, and that the list of demands submitted by the trade union organization, a copy of which was sent to the ILO in the Government's previous reply, have been settled; copies of the agreements concluded will be sent to the Committee shortly. The Government points out that it is ensuring a favourable outcome of the collective bargaining between the parties by providing an adequate regulatory framework.

533. Concerning the allegations of coercion by the Electro Ucayali S.A. enterprise with regard to unionized members, to force them to resign their membership, the Government states that these arguments are unjustified inasmuch as the workers have the support of legislation to claim their trade union rights in situations such as that described. If it is true that the workers were subjected to pressure in order to achieve the results described, they should have availed themselves of the machinery provided for their defence in the relevant legislation, which have been described throughout this report.

534. Concerning the impossibility for the trade union of immediately obtaining new recognition once it had remedied the causes of its cancellation, the Government points out that the trade unions must meet a requirement laid down by the law according to which they must have a minimum of 20 members in order to ensure a certain level of representativeness of workers in the workplace. Obviously, if the trade union is not able to achieve this number of members, it cannot claim a representative status which it does not have and therefore, under the legislation in force, it will lose its recognition as a trade union; and the legislation provides for a reasonable period to enable it to remedy the cause of its cancellation and reapply for recognition. Concerning the Committee's request to amend the provision in question, it should be pointed out that there is a possibility that this provision will be revised.

535. Concerning the comments requested with respect to the Eastern Regional Public Electricity Supply Company, the Government states that these will be forwarded to the Committee as a matter or urgency. Regarding the allegation that the Electro Sur Este S.A. enterprise has, since 30 June 1992, suspended payment of the travel allowance to Guillermo Barrueta Gomez, the Government provides details of the court decisions rendered up till now and confirms that, in July 1997, the Supreme Court of Justice granted the employer leave to appeal in this matter. In the light of the alleged breach by the employer of its obligations regarding the payment of the travel allowance for trade union activities, the complainant should have submitted a complaint before the judicial authorities for cessation of harassment. Article 66 of Decree No. 728, concerning the encouragement of employment (which was in force on the date of the suspension of the travel allowance for trade union duties) includes among the acts of harassment, the unjustified breach of legal or contractual obligations. The complainant has the right to use the relevant legal channels to contest the alleged violation of the rights of this trade union officer. The Government stresses that the decision of the Supreme Court of Justice regarding this case, does not amount to a derogation from the jurisprudence or the acceptance of the arguments of the enterprise; the Government further recalls the independent nature of the Court. Given the actual state of events, the allegations made by the complainants are purely speculative. In addition, regarding the dismissal of trade union officer Mr. Walter Linares, the Government repeats its assertion regarding the existence of legal standards and judicial procedures providing protection against anti-union discrimination to which the person concerned has access.

D. The Committee's conclusions

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

Allegations which remained pending in the
previous examination of the case

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

various acts of anti-union discrimination and interference against the Ucayali S.A. branch of the Light and Power Workers' Union, calculated to eliminate and cause the disappearance of trade union activity, including obstruction of collective bargaining, anti-union dismissals, coercion and threats against workers belonging to the Electro Ucayali S.A. trade union branch;
the Electro Ucayali S.A. enterprise making the granting of open-ended contracts of employment conditional on workers belonging to the Ucayali S.A. branch of the Light and Power Workers' Union giving up their membership;
the transfer of the majority of workers belonging to the above trade union to places other than those specified in their contracts of employment, under the control of the Electrocentro S.A. enterprise;
hostility towards and obstruction of trade union activity, interference in the internal affairs of the above-mentioned union, intimidation of union officials and hinting at the creation of another trade union organization to evade their obligations under prior collective agreements;
the collective dismissal of 19 unionized workers and coercion of workers by the Ucayali S.A. enterprise of workers to give up their union membership, threatening to include them in the collective dismissal if they refuse (as a result, recognition of the trade union was cancelled as the number of members was reduced to fewer than 20, the legal minimum);

[In respect of the above-mentioned questions, the Committee had requested the Government to carry out an investigation without delay.]

unfair dismissal of trade union officer Mr. Jaime Tuesta Linares by the Eastern Regional Public Electricity Supply Company;
a systematic campaign of threatened dismissal and harassment against trade union officers and unionized workers in the Electro Sur Este S.A. enterprise, which has caused serious problems for the workers' union branch in Electro Sur Este Abancay; specifically: (1) trade union officer Mr. Moisés Zegarra Ancalla was transferred; (2) the Electro Sur Este S.A. enterprise (Puno subregion) threatened trade union officer Mr. Adriel Villafuerte Collado with dismissal and suspended him for 30 days without pay;
threats of sanctions and dismissals against trade union officers at the Tacna and district branch of the Light and Power Workers' Union by the Electro Sur S.A. company, which considered that the trade union officers were guilty of serious misconduct for not having dropped their action to enforce a court order in favour of the workers concerning salary increments due to 111 workers.

538. Morover, as concerns the allegation in respect of the refusal of Electro Ucayali S.A. to conclude a collective agreement since May 1996, the Committee had requested the Government to send copies of the agreements concluded subsequent to those referred to in its reply.

539. In this respect, the Committee regrets that, in its replies to allegations of anti-union discrimination and interference, the Government confines itself to pointing out that the legislation prohibits acts of anti-union discrimination and interference and that any victims thereof may appeal to the judicial authorities. The Committee deeply regrets that the authorities have not carried out an investigation into the allegations and that the Government is again merely relying on the existence of provisions concerning protection of freedom of association and judicial remedies or states that the complainant organizations have not provided sufficient evidence. In this respect, the Committee emphasizes that "the Government is responsible for preventing all acts of anti-union discrimination" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 738]. In addition, the Committee draws the Government's attention to the fact that, where cases of alleged anti-union discrimination are involved, the competent authorities should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754]. Moreover, "respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial" [see Digest, op. cit., para. 741]. In these circumstances, the Committee once again urges the Government to carry out an investigation without delay into the allegations of anti-union discrimination in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise and to take all necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.

540. Concerning the allegation relating to the obstruction of collective bargaining by the Electro Ucayali S.A. enterprise, the Committee notes that, according to the Government, the parties reached satisfactory agreements and further notes the Government's statement that it will send the texts of these agreements shortly. The Committee hopes to receive the text of all the agreements concluded without delay and requests the Government to transmit them as a matter of urgency.

New allegations of the complainant organization

541. Regarding the dismissal of trade union officer Mr. Walter Linares by the Electro Sur S.A. enterprise, the Committee regrets that the Government's reply to the allegation concerning the dismissal is limited to statements of a general nature concerning the standards and procedures against anti-union discrimination, to which the person concerned has access. As a result, it urges the Government to carry out an in-depth investigation and keep it informed thereof. With respect to the allegation concerning the suspension of Mr. Guillermo Barrueta Gomez's traval allowance for trade union activities, the Committee notes the Government's statement that the complainant should bring this matter before the judicial authorities, invoking pursuant to the law "an act of harassment" for an unlawful breach of legal and contractual obligations, and that, consequently, the Supreme Court of Justice had granted the application for leave to appeal lodged by the Electro Sur Este S.A. enterprise. The Committee requests the Government to keep it informed regarding the outcome of the appeal.

542. With respect to the allegation concerning the suspension of Mr. Guillermo Barrueta Gomez's travel allowance for trade union activities, the committee notes the Government's statement that the complainant should bring this matter before the judicial authorities, invoking pursuant to the law "an act of harassment" for an unlawful breach of legal and contractual obligations, and that, consequently, the Supreme Court of Justice had granted the application for leave to appeal lodged by the Electro sur Este S.A. enterprise. The Committee requests the Government to keep it informed regarding the outcome of the appeal.

543. Lastly, the Committee requests the Government to ensure that all cases of anti-union discrimination -- including those presented to the Committee -- may be examined through expeditious and effective procedures.

The Committee's recommendations

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

Concerning the allegations of anti-union discrimination and interference in the Electro Ucayali S.A., Eastern Regional Public Electricity Supply Company and the Electro Sur Este S.A. enterprise, the Committee regrets the fact that the Government has not sent precise observations, neither has it carried out an investigation, and is merely relying on the existence of legislation against acts of anti-union discrimination and the possibility that the victims have of lodging judicial appeals, and once again urges the Government to carry out an investigation without delay into the allegations and to take the necessary measures to remedy these serious acts of anti-union discrimination. The Committee requests the Government to keep it informed in this respect.
The Committee hopes to receive from the Government, without delay, the texts of all the collective agreements concluded in the Electro Ucayali S.A. enterprise and requests it to transmit them as a matter of urgency.
Concerning the dismissal of trade union officer Mr. Walter Linares (Electro Sur S.A. enterprise), the Committee urges the Government to carry out an in-depth investigation and to keep it informed thereof.
Concerning the suspension of the trade union allowance paid to trade union leader Mr. Guillermo Barrueta Gómez since 30 June 1992 by the Electro Sur Este S.A. enterprise, the Committee requests the Government to keep it informded regarding the outcome of the appeal in this matter lodged by the Electro Sur Este S.A.
The Committee requests the Government to ensure that all cases of anti-union discrimination -- including those presented to the Committee -- may be examined through expeditious and effective procedures.

Case No. 1906

Interim report

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

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

545. The Committee last examined this case at its November 1997 meeting [see 308th Report, paras. 597-609, approved by the Governing Body at its 270th Session (November 1997)]. In a communication dated 2 October 1997 the Federation of Construction Workers of Peru (FTCCP) sent additional information. The Government sent its observations in a communication dated 27 February 1998.

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

A. Previous examination of the case

547. In its previous examination of the case, with respect to allegations concerning the anti-union persecution of three trade union officers of the Federation of Construction Workers of Peru (FTCCP) who had been sentenced to two years' imprisonment by a judicial body, and to restrictions to the right to collective bargaining included in a provision of Bill No. 2266, the Committee made the following recommendations [see 308th Report, para. 609(a) and (b)]:

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

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

B. Additional information from the Federation of

Construction Workers of Peru (FTCCP)

548. In a communication dated 2 October 1997, the Federation of Construction Workers of Peru (FTCCP) stated that the Sixth Judicial Chamber of the Superior Court of Lima had informed it of the decision of the court of last resort to uphold the sentence of two years' imprisonment for breach of the peace as the result of a demonstration held at the Congress of the Republic on 27 November 1991. The trade union officers included in this sentence are: José Luis Risco Montalván, Mario Huaman Rivera, Víctor Herrera Rubiños and 30 other workers. This illegal and unjust sentence is a further violation of freedom of association, the Constitution and the state of law, and a threat and warning to try to curb growing union and popular protests.

C. The Government's reply

549. In its communication dated 27 February 1998, the Government refers to the allegation concerning the persecution of Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños, trade union officers of the Federation of Construction Workers of Peru, and more specifically the lawsuit against them for causing serious disturbances in November 1991, which resulted, according to the complainants' allegations of 2 October 1997, in them being sentenced to two years' imprisonment. The Government states that this is not a matter of persecution against trade union officers at all; it is a matter of a criminal lawsuit with its basis in the serious disturbances that occurred in November 1991, acts which led the competent legal body to impose the sentence of two years' imprisonment on the officers involved. The Government adds that the complainant organization does not attach a copy of the judicial decision in which their sentence is imposed to its allegations dated 2 October, meaning that the scope of said decision cannot be analysed. Notwithstanding this fact, the Government indicates that the complainant organization has been imprecise in saying that a "sentence of two years' imprisonment" was imposed. The Penal Code makes no reference to the sentence of imprisonment, but instead to a custodial penalty which, as it does not exceed four years, is not a sentence that involves forcible detention for those sentenced but only imposes on them certain rules of conduct.

550. With respect to Bill No. 2266, the Government states that the substitute draft Industrial Relations Bill overrides Bill No. 2266. Moreover, the Government indicates that the draft bill contains input from the National Confederation of Private Employers' Institutions, the General Confederation of Workers of Peru, the Ministry of Labour and Social Mobility, as well as observations by the International Labour Organization relating to unionization and collective bargaining, and that it is currently being debated by the Congress of the Republic.

D. The Committee's conclusions

551. The Committee observes that the allegations that had remained pending in its previous examination of the case referred to the sentence of two years' imprisonment imposed on the trade union officers of the Federation of Construction Workers of Peru (FTCCP) Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños. The Committee also observes that it had requested the Government to keep it informed about the final approval of the new draft bill to amend the Industrial Relations Act which, according to the Government, eliminated certain restrictions to collective bargaining that were stipulated in Bill No. 2266.

552. With respect to the sentence the judicial body imposed on trade union officers Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños, the Committee observes the FTCCP's statement that the Supreme Court of Lima upheld the sentence of two years' imprisonment imposed on the trade union officers mentioned, as well as on 30 other trade unionists, for breach of the peace for having participated in a demonstration at the Congress of the Republic on 27 November 1991. In this connection, the Committee notes the Government's statement that a custodial penalty of two years was imposed on the grounds of the serious disturbances that occurred in November 1991, and that given that the sentence does not exceed four years it would not imply "forcible detention" for those sentenced, but instead the imposition of certain rules of conduct.

553. The Committee observes that the versions given by the complainant organizations and the Government concerning the facts that led to the sentencing of the trade union officers and trade unionists differ. While the complainant organizations state that the sentences were imposed for breach of the peace for having held a demonstration at the Congress of the Republic, the Government indicates that the criminal proceedings were instituted because of serious disturbances that had occurred, but does not indicate what those disturbances entailed or their consequences (e.g. physical assault, physical injury, destruction of personal property or real estate, etc.) or whether the persons concerned were directly involved in these disturbances. Given this situation, in order to be able to give an informed opinion about these allegations, the Committee requests the Government to send it, as soon as possible, a copy of the decisions handed down in the various courts. The Committee also requests the Government to provide more information about the "rules of conduct" imposed on the trade union officers and trade unionists under their sentences.

554. As regards the allegation concerning restrictions to collective bargaining in the construction sector as a result of Bill No. 2266, the Committee notes the Government's statement that the draft bill to amend the Industrial Relations Act overrides Bill No. 2266 and thus eliminates the provision criticized by the complainant organization that barred collective bargaining in the construction industry at the construction project level until six months had elapsed from the full start of construction work. Moreover, the Committee notes the Government's statement that the new draft bill contains input from the National Confederation of Private Employers' Institutions, the General Confederation of Workers of Peru and the Ministry of Labour and Social Mobility, and the observations of the International Labour Organization in respect of unionization and collective bargaining. Lastly, the Committee observes that the complainant organizations have not objected in this case to the amending draft bill referred to by the Government.

555. In any event, the Committee observes that for many years the Committee of Experts on the Application of Conventions and Recommendations has been formulating observations requesting the Government to take measures to amend its legislation, including the Industrial Relations Act, to bring it into line with the provisions of Conventions Nos. 87 and 98. The Committee also observes that the Committee of Experts has already taken note of the draft bill to amend the Industrial Relations Act, having observed that the bill does not encompass all the necessary amendments proposed [see the 1998 Report of the Committee of Experts, Part 1A, pp. 189, 190, 254 and 255]. This being the case, the Committee requests the Government to guarantee that the new draft bill to amend the Industrial Relations Act is fully in conformity with Conventions Nos. 87 and 98, in particular, as concerns the restrictions on collective bargaining raised in this case. The Committee requests the Government to keep it informed of the developments in respect of the status of this draft bill before the Congress. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

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

As regards the sentence imposed by a judicial body on trade union officers Mr. José Luis Risco Montalván, Mr. Mario Huaman Rivera and Mr. Víctor Herrera Rubiños (currently released from prison) and on 30 other trade unionists, to enable it to give an informed opinion the Committee requests the Government to send it, as soon as possible, a copy of the decisions handed down in the various courts. The Committee also requests the Government to provide more information concerning the "rules of conduct" to be imposed on the trade union officers and trade unionists under the sentence.
The Committee requests the Government to guarantee that the new draft bill to amend the Industrial Relations Act is fully in conformity with Conventions Nos. 87 and 98, in particular as concerns the restrictions on collective bargaining raised in this case.
The Committee requests the Government to keep it informed of the developments in respect of the status of this draft bill before the Congress. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1914

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

Complaint against the Government of the Philippines
presented by
the Telefunken Semiconductors Employees' Union (TSEU)

Allegations: Dismissal of trade unionists further to strike action;
detention of unionists; and acts of violence against strikers

557. The Committee already examined the substance of this case at its November 1997 meeting when it presented an interim report to the Governing Body [see 308th Report, paras. 635 to 671, approved by the Governing Body at its 270th Session (November)].

558. The Government forwarded further observations on the case in communications dated 5 February and 12 March 1998.

559. The Philippines has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

560. The Telefunken Semiconductors Employees' Union (TSEU) presented allegations concerning the dismissal of approximately 1,500 TSEU officials and members who had participated in strike action and the refusal of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") to abide by various Orders of the Department of Labor and Employment (DOLE) to reinstate these workers in their jobs, as well as the subsequent failure of the Government to enforce the DOLE's Orders for Reinstatement. These allegations also referred to the brief detention of five TSEU members at the Taguig police station and Taguig Municipal Jail as well as to acts of violence carried against strikers by company security guards and the police.

561. In its reply, the Government indicated that its Department of Labor and Employment (DOLE) sent its sheriffs on three different occasions to enforce the DOLE's Orders for Reinstatement but they were unable to do so because of TEMIC'S refusal to comply with the same. The Government also pointed out that the case was now outside the jurisdiction of the Labor Department on account of the petitions filed by the TSEU and TEMIC with the Supreme Court which had consolidated the two petitions in a resolution dated 13 January 1997. The Supreme Court had not, to date, promulgated a decision on the case.

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

The Committee urges the Government to ensure that the 1,500 or so leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who were dismissed further to their participation in strike action from 14 to 16 September 1995 are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the Orders for Reinstatement issued by the Government's Department of Labor and Employment (DOLE). The Committee requests the Government to keep it informed of any developments in this regard.
Noting that the Supreme Court has consolidated the two petitions filed by the union and the company in a resolution dated 13 January 1997, the Committee requests the Government to keep it informed of the outcome of the Court's decision on this case.
The Committee requests the Government to provide its observations on the allegation that five TSEU members were detained on 23 September 1995 at the Taguig police station and later at the Taguig Municipal Jail.
The Committee further requests the Government to keep it informed of the outcome of the investigation by the Philippine National Police into acts of violence allegedly carried out by the Taguig policemen against TSEU members who were picketing on 20 and 21 October 1995.

B. The Government's reply

563. In a communication dated 5 February 1998, the Government states that the Supreme Court issued a "Notice of Judgement" on 12 December 1997 on two petitions brought before it by the TSEU and TEMIC, respectively. The Government points out that in its decision the Court granted the TSEU's petition and ordered the immediate reinstatement, without exception, of all striking workers of the TSEU. On the other hand, the Court dismissed TEMIC's petition for lack of merit. The Court directed the Secretary of Labor and Employment to ensure the effective enforcement of the Writ of Execution issued by the Secretary on 27 June 1996 and to determine, with dispatch, the legality of the strike and liability of the individual strikers, if any. Finally, the Government indicates that in its decision, the Court warned union members that a repetition of the hunger strike or any similar mass demonstrations, within or about its premises, in an effort to influence the outcome of its future decisions, would be dealt with severely ( a copy of the Court's decision has been annexed to the Government's reply).

564. The Government states that, pursuant to this Supreme Court decision of 12 December 1997, its Department of Labor and Employment (DOLE) issued Order No. 32 on 15 December 19997 creating a Task Force that would take affirmative action on said decision. The Government points out, however, that all action being taken by the members of t his Task Force are, for the time being, only anticipatory, in view of the possibility that the decision of 12 December 1997 will be upheld by the Court in its final judgement. In this respect, the Government states that the Supreme Court decision is not yet final and executory as both parties are still entitled to one last motion, after which, the Court will finally make an "Entry of Judgement". Once the Court has promulgated a final decision, the records of the case will be returned to the court of origin for implementation.

565. The Government indicates that on 2 January 1998, TEMIC filed a "Motion for Reconsideration" pleading the Court to reconsider and set aside its 12 December 1997 decision and render judgement: (a) dismissing the union's petition; (b) setting aside the Writ of Execution dated 27 June 1996 and Order dated 21 November 196; (c) finding the union officers and members, who defied the DOLE Secretary's Assumption Order of 8 September 1995 and Return-to-Work Order of 16 September 1995, to have lost their employment status for having knowingly participated in an illegal act; and (d) finding that the Secretary of Labor and Employment has the discretion to exclude certain employees from the coverage of the Return-to-Work Order.

566. The Government adds that subsequently, the TSEU filed a "Motion for Clarification" on 3 January 1998. The motion seeks for a Clarificatory Order/Resolution issued to the effect that, under the 12 December 1997 decision, TEMIC shall be liable for the payment of back wages to 1,500 illegally dismissed workers including union members. The payment of said back wages shall be reckoned from the finality of the 27 October 1995 Order. The Government concludes by stating that to date the DOLE is still awaiting the Court's action on both motions.

567. In its communication dated 12 March 1998, the Government provides its observations in respect of the allegation that five TSEU members were detained on 23 September 1995 at the Taguig police station and later at the Taguig Municipal Jail and subsequently released on 26 September 1995. The Government confirms that five striking TSEU members were arrested by the Taguig Police on 23 September 1995 and turned over to the Station Investigation Office based on complaints of brief illegal detention and grave coercion filed against them by two company managers. In effect, these two TEMIC managers alleged in their complaint to the police that on 14 September 1995, the above five TSEU members together with TSEU officers and 250 other strikers who were all employees of TEMIC staged a strike against the company. On 18 September 1995, the DOLE issued an Order of Free Ingress/Egress to non-striking employees. As a result, on 22 September 1995, the above-mentioned strikers padlocked the gate of the TEMIC company and later set up a human barricade of the TEMIC gates, thus preventing the two managers from leaving the company building despite appeals to let them go. The Government adds that on 25 September 1995, the pertinent documents concerning the charges filed by the two TEMIC managers were endorsed to the Rizal Provincial Prosecutor's Office, Pasig City, for inquest. However, in a resolution dated 17 July 1996, the Office of the Pasig City Prosecutor dismissed the charges against said TSEU personalities for insufficiency of evidence (a copy of this resolution is attached to the Government's reply).

568. Regarding the acts of violence allegedly carried out by Taguig policemen against striking TSEU members on 21 October 1995, the Government indicates that the Taguig Police Station informed it that the presence of said policemen in the vicinity at that time was only for purposes of enforcing the law and maintaining peace and order in the area. Moreover, it was the company security guards and hired goons who had started the violence against the strikers.

C. The Committee's conclusions

569. The Committee recalls that the allegations in this case concerned the dismissal of approximately 1,500 officials and members of the Telefunken Semiconductors' Employees' Union (TSEU) who had participated in strike action and the refusal of Temic Telefunken Microelectronics (Phils.) Inc. ("TEMIC") to abide by various Orders of the Department of Labor and Employment (DOLE) to reinstate these workers in their jobs, as well as the subsequent failure of the Government to enforce the DOLE's Orders for Reinstatement. These allegations also referred to the detention of five union members and to acts of violence carried out against strikers by company security guards as well as the police.

570. As regards the alleged dismissal of around 1,500 TSEU members further to their participation in strike action as well as the refusal of TEMIC to abide by the DOLE's various Orders for Reinstatement, the Committee notes that in a decision handed down on 12 December 1997, the Supreme Court granted the TSEU's petition but dismissed that of TEMIC for lack of merit. The Committee notes with interest that in its decision, the Court ordered the immediate reinstatement, without exception, of all striking workers of the TSEU. The Committee would recall that during its previous examination of this case, it had urged the Government to ensure that these 1,500 TSEU leaders and members who were dismissed further to their participation in strike action were reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with DOLE's Orders for Reinstatement [see 308th Report of the Committee, para. 668]. The Committee also notes that pursuant to the Supreme Court decision of 12 December 1997, the DOLE issued Order No. 31 on 15 December 1997 creating a Task Force that would take affirmative action on said decision. Nevertheless the Supreme Court decision is not yet final and executory since on 2 January 1998, TEMIC filed a "Motion for Reconsideration" requesting the Court to reconsider and set aside its 12 December 1997 decision. Moreover, on 3 January 1998, the TSEU filed a motion seeking a Clarificatory Resolution to the effect that, under the 12 December 1997 decision, TEMIC shall be liable for the payment of back wages to the 1,500 illegally dismissed workers including union members. Once the Court has promulgated a final decision on both motions, the records of the case will be returned to the court of origin for implementation.

571. In this respect, the Committee profoundly regrets that over two years have elapsed since the first Order for Reinstatement of the above-mentioned 1,500 TSEU leaders and members was issued (27 October 1995). The Committee is therefore bound to remind the Government that it is responsible for preventing all acts of anti-union discrimination and that cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders and members dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 749]. The Committee therefore urges the Government to guarantee expeditious and effective protection against acts of anti-union discrimination. The Committee further notes that in its decision of 12 December 1997, the Supreme Court itself has ruled that since it did not issue any Temporary Restraining Order, there is therefore no legal impediment to the enforcement of the Writ of Execution and Alias Writ of Execution previously issued by the DOLE. The Committee observes that in this decision, the Supreme Court goes on to say:

... it is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower court, does not even interrupt the course of the latter when there is no writ of injunction restraining it. The inevitable conclusion is that for as long as no writ of injunction or restraining order is issued in the special civil action for certiorari, no impediment exists and there is nothing to prevent the lower court from exercising its jurisdiction and proceeding with the case before it ....

572. In view of what has been enunciated in the preceding paragraph and of the fact that some considerable time may elapse before the Supreme Court hands down a final decision in this case, the Committee would once again urge the Government to ensure that the 1,500 or so TSEU leaders and members who were dismissed further to their participation in strike action are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the DOLE's Orders for Reinstatement. The Committee requests the Government to keep it informed of any developments in this regard. Noting moreover that TEMIC and the TSEU have filed two further motions before the Supreme Court on 2 and 3 January 1998, respectively, the Committee requests the Government to keep it informed of the outcome of the Supreme Court's final decision on this case.

573. The Committee notes the Government's confirmation of the allegation that five TSEU members were detained on 23 September 1995 by the Taguig police although they were subsequently released on 26 September 1995. Charges of brief illegal detention and grave coercion were filed by two TEMIC managers who alleged in their complaint that during the course of the strike, the five TSEU members (along with other striking TEMIC employees) had prevented them from leaving the company building. The Committee notes however that a resolution was issued by the Office of the Pasig City Prosecutor on 17 July 1996 dismissing the charges against said TSEU members for insufficiency of evidence. In effect, the Committee notes that the three senior prosecutors of the Pasig City Prosecutor's Office who signed this resolution dismissed the charges for the following reasons:

...

Evaluating the evidence, there exists no prima facie basis to warrant the indictment of the respondents for the offense as charged ... such conduct of the striking employees, including all the respondents, cannot be made a basis for a finding of a probable cause that the crime in question was committed because the detention or deprivation of liberty of the complaints under the circumstances, while certainly not to be justified, was not done with criminal intent. To hold otherwise would be to nullify the constitutional policy of social justice and protection to labor and to hold the Revised Penal Code in effect as a veritable sword of Damocles upon labor.

By parity of reasoning, the charge of grave coercion finds no application under the circumstances. Complainants failed to substantiate with reasonable certainty the basic element of grave coercion -- violence. The evidence, thus adduced, shows that no force or violence was employed by the respondents upon the complainant when the respondents exercised their constitutional and legal right to strike. Consequently, respondents cannot be held liable for the crime of grave coercion.

Wherefore, it is resolved that the charges against the respondents be dismissed for insufficiency of evidence.

The Committee takes due note of the above information and would once again draw the Government's attention to the principle that the arrest and detention, even if only briefly, of trade unionists on the grounds of trade union activities constitute a serious obstacle to the exercise of trade union rights and an infringement of freedom of association [see Digest, op. cit., paras. 70 and 75]. The Committee would therefore request the Government to take steps to ensure in future that the authorities concerned receive appropriate instructions so as to secure respect of this fundamental principle.

574. With regard to the allegation that on 20 October 1995, during a union meeting at the picket line, company security guards and hired goons sprayed tear-gas and water at the strikers who were also stoned, and that on 21 October 1995 the union's picket line was ransacked by company security guards assisted by Taguig policemen, the Committee notes that according to the Government, the presence of said policemen in the vicinity at the time was only for purposes of maintaining peace and order in the area and that it was the company security guards and hired goons who started the violence against the strikers. In this respect, the Committee wishes to recall that the rights of workers' 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 unions, and it is for governments to ensure that this principle is respected [see Digest, op. cit. para. 47]. During its previous examinations of this case, the Committee had noted that the union had requested the Philippine National Police to investigate the incident; the Committee had therefore requested the Government to keep it informed of the outcome of this investigation [see 308th Report of the Committee, para. 669]. The Committee notes with regret that the Government has not reported on any progress made by the police in shedding any light on this serious incident. Noting the Government's observation that company security guards and hired goons had started the violence against the strikers, the Committee would request the Government to institute without delay an independent judicial inquiry into the acts of violence carried out against TSEU members who were picketing on 20 and 21 October 1995, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the outcome thereof.

The Committee's recommendations

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

The Committee urges the Government to ensure that the 1,500 or so leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who were dismissed further to their participation in strike action from 14 to 16 September 1995 are reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the Orders for Reinstatement issued by the Government's Department of Labor and Employment (DOLE). The Committee requests the Government to keep it informed of any developments in this regard.
The Committee deeply regrets that two and a half years have elapsed since the first Order for Reinstatement. It therefore urges the Government to guarantee expeditious and effective protection against acts of anti-union discrimination.
Noting that the company and the union have filed two further motions before the Supreme Court on 2 and 3 January 1998, respectively, the Committee requests the Government to keep it informed of the outcome of the Court's final decision on this case.
The Committee requests the Government to take steps to ensure in future that the authorities concerned receive appropriate instructions so that trade unionists are not arrested and detained, even if only briefly, on the grounds of trade union activities.
The Committee requests the Government to institute without delay an independent judicial inquiry into the acts of violence carried out against TSEU members who were picketing on 20 and 21 October 1995 so as to identify and punish the guilty parties; it requests the Government to keep it informed of the outcome thereof.

Case No. 1884

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

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

Allegations: Violations of the right to organize and
the right to strike

576. The Committee examined this case in its meeting in March 1997 [see 306th Report, paras. 619-704, approved by the Governing Body at its 268th Session (March 1997)] during which it made interim conclusions.

577. The Government furnished its observations in a communication dated 23 April 1998.

578. Swaziland 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

579. The previous examination of this case was based not only on the complainant's allegations and the Government's reply, but also on the report of the direct contacts mission which took place in the country from 30 September to 4 October 1996. At that time, the Committee had examined allegations of dismissals, threats and harassment towards trade unionists, including the abduction of the General-Secretary of the Swaziland Federation of Trade Unions (SFTU), and the incompatibility of the 1996 Industrial Relations Act (IRA) with the principles of freedom of association. In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations in March 1997:

...

The Committee would draw the Government's attention to its conclusions concerning the numerous provisions of the Industrial Relations Act which are incompatible with the principles of freedom of association and urges the Government to take the measures necessary in the very near future so that the Act is amended accordingly, giving due consideration to the proposals made by the tripartite Labour Advisory Board. It requests the Government to keep it informed of the progress made in this regard.
Noting with concern that section 12 of the 1973 Decree on meetings and demonstrations places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and can result in serious violation of freedom of association, the Committee urges the Government to take the necessary measures to repeal this section so as to permit trade union organizations to operate freely.
As concerns the allegation that a 16 year-old schoolgirl was killed by a stray bullet fired by the police during the January 1996 stay-away, the Committee requests the Government to take the necessary measures to institute immediately an independent inquiry into the matter in order to determine the justification for the action taken by the police, to determine responsibilities and to punish the guilty parties.
As concerns the abduction of Mr. Jan Sithole on 29 August, the Committee requests the Government to take the necessary measures to establish an independent investigation into this matter and to keep the Committee informed of the outcome of the investigation.
As concerns recent use of the 1963 Public Order Act to ban strike action, the Committee urges the Government to ensure that this Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action.
As concerns the new charges filed against Jan Sithole, Richard Nxumalo, Jabulani Nxumalo, Themba Msibi, Barbara Dlamini and the SFTU itself in respect of the January 1996 protest action under section 40 of the 1996 Industrial Relations Act read together with sections 73 and 75, the Committee refers to its conclusions on the incompatibility of these provisions with the principles of freedom of association and calls upon the Government to take the necessary measures immediately so that these charges are dropped.
As concerns the dismissal of Jabulani Nxumalo, Assistant General-Secretary of the SFTU, the Committee requests the Government to investigate immediately the circumstances surrounding his dismissal and, if it appears that his dismissal was related to his trade union activity, to take the necessary measures to ensure his reinstatement in his job, if he so desires. It requests the Government to keep it informed of the outcome of this investigation.

B. The Government's further reply

580. In its communication dated 23 April 1998, the Government refers to a draft Industrial Relations Act, provided to the Office, which was revised in consultation with the social partners and with assistance from the ILO.

581. The Government further indicates that many of the outstanding allegations are no longer relevant due to the passage of time. There are no cases pending against any leader of any labour movement, nor is anyone serving a sentence for offences associated with trade union activities. Furthermore, the Government has advanced, with the cooperation of the social partners and the ILO, with the development of a draft Industrial Relations Act which seeks to improve the application of international labour standards, especially those ratified by Swaziland. The draft also seeks to improve the dispute resolution processes. This draft was submitted by the tripartite Labour Advisory Board to the Minister of Enterprise and Employment on 19 March 1998. The Minister should be submitting a draft Bill to Cabinet shortly and Parliament will naturally take it up from there.

582. The Government concludes by stressing that it is making good use of the power of tripartism in not only arriving at a consensus, but in coming out of an unnecessary strife borne out of suspicion and mistrust as well. The Government expresses its thanks for the assistance provided by the ILO and acknowledges the sense of urgency in handling this matter.

C. The Committee's conclusions

583. The Committee notes that the outstanding recommendations in this case refer to amendments to be made to existing legislation, including the Industrial Relations Act, as well as to call upon the Government to drop pending charges under this legislation brought against the following leaders of the Swaziland Federation of Trade Unions (SFTU): Jan Sithole, Richard Nxumalo, Jabulani Nxumalo, Themba Msibi, Barbara Dlamini and the Federation itself. Finally, the Committee requested the Government to establish independent investigations into the circumstances surrounding: (1) the death of a 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; (2) the abduction of Jan Sithole, Secretary-General of the SFTU, on 29 August 1996; and (3) the dismissal of Jabulani Nxumalo, Assistant Secretary-General of the SFTU.

584. The Committee notes with interest from the Government's report that there are no charges pending against any trade unionists and that no one is serving a sentence for offences associated with trade union activities.

585. The Committee notes with regret, however, that the Government has not furnished any information on the independent investigations which the Committee had requested the Government to establish into the above-mentioned matters. The Committee must therefore once again urge the Government to establish independent investigations in respect of: the death of the 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; the abduction of Jan Sithole on 29 August 1996; and the dismissal of Jabulani Nxumalo. It further requests the Government to take the necessary measures to ensure the reinstatement of Jabulani Nxumalo in his post, if he so desires, if it appears that his dismissal was related to his trade union activity. The Government is requested to keep it informed of the outcome of these investigations.

Draft Industrial Relations Act

586. The Committee notes with interest the efforts made by the Government, in consultation with the social partners and with the assistance of the ILO, to revise the Industrial Relations Act in order to bring it into conformity with the principles of freedom of association.

587. The Committee notes, in particular, that section 32 of the draft concerning the regulation of federations no longer includes the prohibition on strike action by federations and has eliminated the other restrictions on the activities of federations contained in the 1996 IRA. Furthermore, the draft has eliminated all penal sanctions concerning strike action. While noting that the Minister may still make an application to the Court for an injunction restraining the commencement of a strike or lockout which he or she considers to threaten national interest (section 89 of the Bill), the Committee notes with interest that the term "national interest" is defined in the Bill as meaning "matters which will have or are likely to have the effect of endangering the life, health or personal safety of whole or part of the population". Finally, the Committee notes with interest that broadcasting services have been eliminated from the list of essential services (section 93 of the Bill).

588. The Committee further notes that the other limitations to the full exercise of freedom of association in the 1996 IRA which were raised in its previous examination of this case [see 306th Report, paras. 689-692] have been effectively eliminated.

589. In conclusion, the Committee notes with interest that this draft appears to respond to all the matters raised in its previous examination of this case in respect of the conformity of the 1996 Industrial Relations Act (IRA) with the principles of freedom of association. Noting that this draft has been submitted to the Minister of Enterprise and Employment and that it is expected that a draft Bill will be submitted shortly to Cabinet and then to the Parliament, the Committee urges the Government to take the necessary measures to ensure that this draft is adopted in the near future and that, in its final form, it maintains the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard.

1973 Decree on meetings and demonstrations
and 1963 Public Order Act

590. The Committee notes with deep concern that the Government has not responded to its previous recommendations concerning the 1973 Decree on meetings and demonstrations and the abusive use of the 1963 Public Order Act [see 306th Report, paras. 694, 701 and 705(c) and (f)]. It therefore once again urges the Government to repeal section 12 of the 1973 Decree which it has concluded places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and to ensure that the 1963 Public Order Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action. It requests the Government to keep it informed of the progress made in this respect.

The Committee's recommendations

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

The Committee urges the Government to take the necessary measures to ensure that the Industrial Relations Bill, drafted in consultation with the social partners, is adopted in the near future and that, in its final form, it maintains the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. The Government is requested to keep the Committee informed of the progress made in this regard.
The Committee once again urges the Government to repeal section 12 of the 1973 Decree which it has concluded places important restrictions on the rights of organizations to hold meetings and peaceful demonstrations and to ensure that the 1963 Public Order Act is amended so that it may no longer be used for the purpose of oppressing legitimate and peaceful strike action. It requests the Government to keep it informed of the progress made in this regard.
The Committee once again urges the Government to establish independent investigations into: the death of the 16-year-old schoolgirl, killed by a stray bullet fired by the police during the January 1996 stay-away; the abduction of Jan Sithole on 29 August 1996; and the dismissal of Jabulani Nxumalo. It further requests the Government to take the necessary measures to ensure the reinstatement of Jabulani Nxumalo in his post, if he so desires, if it appears that this dismissal was related to his trade union activity. The Government is requested to keep it informed of the outcome of these investigations.

Case No. 1952

Interim report

Complaint against the Government of Venezuela
presented by
the Trade Union of Professional Fire-Fighters and Allied Workers of the
Federal District and the State of Miranda
(SINPROBOM)

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

592. The complaint is contained in a communication from the Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) dated 5 February 1998. The complainant submitted new allegations in a communication dated 17 April 1998.

593. The Government sent its observations in a communication dated 17 April 1998.

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

A. The complainant's allegations

595. The Trade Union of Professional Fire-Fighters and Allied Workers of the Federal District and the State of Miranda (SINPROBOM) alleges in its communications dated 5 February and 17 April 1998 that on 14 July 1997 the Eastern Fire Brigade Association arbitrarily dismissed Messrs. Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina (four of the seven members of its executive board) and that a further member of the executive board (Mr. Ignacio Díaz) was subsequently transferred, resulting in a reduction of remuneration and a decline in working conditions. In addition, a considerable number of workers (all members of the complainant organization) were also dismissed arbitrarily and unjustly. The complainant explains that on 15 February 1996 it had submitted a list of demands which were still under negotiation, meaning that the trade unionists were invested with immunity from dismissal and therefore any measure to be taken against them required prior notification to the labour inspector who had to give a reasoned opinion on the matter, under penalty of the invalidation of the prejudicial measures.

596. The complainant adds that in the appeals it submitted the employers' representatives stated that the workers in question were public officials who were excluded from the protection of the Organic Labour Law and that in addition there was the "paramilitary" nature of the service provided by the fire-fighters which was qualified as a "security" service, meaning that the individuals in question were excluded from trade union rights. Almost eight months after the dismissals and transfers, on 3 March 1998, the Ministry of Labour ordered the reinstatement of the dismissed and transferred trade unionists and, bearing in mind a previous decision of the Committee on Freedom of Association, recognized that the fire-fighters have the right to establish and join organizations and to conclude collective agreements, and that they are not public service employees, and therefore come under the Organic Labour Law. However, in the actual reinstatement order issued by the Ministry of Labour it is stated that fire-fighters provide services for the armed forces, which paradoxically would exclude them from the Organic Labour Law, as provided in section 7 of the Law.

597. In spite of the Ministry of Labour's decision, the Eastern Fire Brigade Association maintained the dismissals and transfers of the officials of the complainant trade union. Representatives of the Association submitted an application to annul the order for reinstatement issued by the Ministry of Labour to the Ninth Labour and Labour Stability Court of the Metropolitan Area of Caracas and, in addition, requested the cancellation of the registration of SINPROBOM, issued by the Ministry of Labour on 12 April 1994. This request was based on the following:

the trade union officials of SINPROBOM are public service employees and, therefore, the labour inspectorate, as part of the Ministry of Labour, cannot make an application for protection against the acts of anti-union discrimination to which they were subjected, and
the fire-fighters provide services to "State security forces" which are of a "paramilitary" nature and they are part of the "armed forces", not being eligible for the protection of freedom of association, collective bargaining and protection against anti-union acts provided in the Organic Labour Law.

598. The complainant indicates that unexpectedly and suddenly, on 6 April 1998, which was the working day following the receipt of the application for nullity from the Eastern Fire Brigade Association, the court ordered the provisional suspension of the implementation of the decision taken by the Ministry of Labour until such a time as a decision was handed down on the merits of the case, which could take as long as a year or more given the procedural delays in Venezuela's judicial system. In other words, the trade union officials who had been dismissed, transferred and demoted will go on suffering from anti-union discrimination until a final decision has been handed down in the case in question, rendering the Ministry of Labour's decision entirely ineffective. In practice this means allowing the elimination of SINPROBOM, since the dismissal of the trade union officials is only one of a number of means that have been used to eliminate this trade union organization.

599. Furthermore, the complainant recalls that on 14 and 20 August 1997, the trade union executives Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District, under penalty of imprisonment. These bodies control the regional police forces and their involvement in the dispute was aimed at frightening the trade union officials into not pursuing their efforts to defend workers.

600. According to the complainant, these events are part of a plan by the regional and local authorities to eliminate the organization. In this connection, in the minutes of the meeting dated 25 February 1997 of the Municipal Council of Chacao in the State of Miranda, the Governor of the State indicates that: "the Fire-fighters' Act approved by the Congress of the Republic does not permit the existence of a trade union. We are waiting for a legal opinion in this respect, as this is a State security body ...". This statement has the support of the Governor himself, as well as the department board members and town councillors attending the session. Likewise, in the document submitted by the members of the management board of the Eastern Fire Brigade Association dated June 1997 (one month before the dismissals of the trade union officials) it is stated that SINPROBOM "has no place vis-à-vis the Fire Brigade, given that this is an institution for the security and defence of the State". Likewise, it recommends "that the trade union that operates within the body be eliminated".

B. The Government's reply

601. In its communication dated 17 April 1998, the Government states that by way of the administrative decision handed down by the labour inspectorate for the eastern district of the metropolitan area of Caracas, the requests for reinstatement and the payment of unpaid wages, filed on 18 and 23 July 1997 by Messrs. Glácido Gutiérrez, Juan Bautista Medina, Tomás Arencibia, Ruben Gutiérrez and Ignacio Díaz, against the Eastern Fire Brigade Association were admitted, and therefore the institution was ordered to immediately proceed to reinstate these individuals in the duties they occupied before their dismissal and in the same conditions in which they worked previously, as well as to immediately pay them the wages that had been stopped, calculated from the date of the dismissals and the demotion, that is from 14 July 1997, up to the date of their definitive reinstatement in their posts. This decision is in accordance with sections 449, 451, 454 and 506 of the Organic Labour Law currently in force and there is no possibility of an administrative appeal, as stated in section 456; however, an application for nullity can be brought against it before the competent courts within a time-limit of six months from the date of notification. The Government attaches a copy of the administrative decision.

602. The administrative decision provides as follows (extracts):

... in respect of the Eastern Fire Brigade there are no special regulations relating to collective labour relations or in particular to measures for the protection of freedom of association. This being the case: (a) since the exercise of trade union activities is not in any way incompatible with the services provided by fire-fighters and, in fact, as the Committee on Freedom of Association of the International Labour Organization stated recently, "all necessary measures" must be taken "to guarantee the maintenance in law and in practice of the right to organize and to bargain collectively, it being understood that the right to strike can be prohibited for these workers ..."; (b) bearing in mind that there is no express regulation that governs this matter for such workers; and (c) given that in this specific case there is no other form of special protection such as so-called trade union immunity, which this administrative labour office should apply in accordance with the Organic Labour Law (Title VII, Chapter II, section 6); it is therefore declared that the workers of the Eastern Fire Brigade shall benefit from the protection of trade union immunity, in the terms provided in the Organic Labour Law. (...)

These official communications confirm the fact that the persons bringing this action had stopped "providing their services for the permanent operation of this institution", and that even the members of the executive board of the savings bank which operates within this association had been made aware of the decision. It was fully confirmed that, given the fact that on 21 August 1997 all the petitioners were members of the executive board, and given the applicability of irremovability as provided in section 506 of the Organic Labour Law, the employer was obliged to request this labour inspectorate to assess any error, act or omission committed by said workers which could constitute any of the grounds stipulated in section 102, eiusdem generis the ground invoked by the employer to justify the termination of the employment relationship of the trade union officials given the public interest of the functions performed by these workers, necessarily has to have the prior appraisal and pronouncement of the labour inspector of the respective jurisdiction, in accordance with the provisions of section 453, eiusdem generis. Those workers invested with immunity from dismissal are in a similar situation, as in the case governed by section 106, eiusdem generris. (...)

By reason of the above and given that both the employment relationship as well as the immunity from dismissal and the dismissal have been fully proven, the labour inspectorate for the eastern part of the metropolitan area of Caracas, in accordance with its legal authority, declares granted the applications for reinstatement and the payment of unpaid wages made on 18 and 23 July 1997 by Messrs. Glácido Gutiérrez, Juan Bautista Medina, Tomás Arencibia, Rubén Gutiérrez and Ignacio Díaz, against the Eastern Fire Brigade Association, and initially contained in files Nos. 93-97 and 96-97. Therefore, the Eastern Fire Brigade Association is ordered to proceed with the immediate reinstatement of the above-mentioned individuals in the posts they occupied before their dismissal and with the same conditions of employment. Likewise, the Eastern Fire Brigade Association is ordered to immediately pay the salaries that said individuals had stopped receiving, calculated from the date of the dismissals and the demotion, that is 14 July 1997, up until the date of their final reinstatement in their posts. This is decided in accordance with sections 449, 451, 454 and 506 of the prevailing Organic Labour Law.

C. The Committee's conclusions

603. The Committee observes that in this case the complainant has alleged: (i) the dismissal of several trade union officials of their organization (in the fire-fighting sector), namely Messrs. Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia and Juan Bautista Medina, and also of a significant number of union members, as well as the transfer of another trade union official (Mr. Ignacio Díaz); (2) that a summons was served on Messrs. Tomás Arencibia and Glácido Gutiérrez to appear before two prefectures under penalty of imprisonment; (c) the existence of a plan by the local and regional authorities to eliminate the complainant trade union and to withdraw its registration.

604. The Committee notes the Government's observations, in particular the fact that the Ministry of Labour, through the labour inspectorate, has recognized the trade union rights of the complainant (the right to organize and belong to trade unions, the right to collectively bargain and the right of trade union officials to protection against acts of anti-union discrimination) and has declared invalid the dismissals and transfers of trade union officials belonging to the complainant organization (although, as the complainant points out, the administrative decision handed down by the labour inspectorate has been appealed against before the judicial authority by the employers -- the municipal and provincial authorities of the State of Miranda in this case -- which consider that the fire-fighters are public service employees and work in an institution providing state security and defence which is why, in their view, they should not enjoy trade union rights). The Committee observes that this judicial appeal has had the effect of suspending temporarily the implementation of the order handed down by the labour inspectorate declaring the dismissals and transfers of the trade union officials of the complainant organization invalid.

605. In this context, the Committee wishes to refer to the conclusions that it adopted at its November 1997 meeting in a previous case submitted by the same complainant organization when examining allegations relating to restrictions to the union rights of fire-fighters' trade unions that had been adopted on the ground that they were part of a service linked to national defence and security [see 308th Report, Case No. 1902, paras. 699-705]:

... the Committee would nevertheless point out that the complainant has expressed its fear that the Act of 1996 respecting the exercise of the occupation of fire-fighter will be interpreted in a way which would deprive fire-fighters of their right to organize and to bargain collectively, rights which they currently enjoy, at least in practice.

The Committee points out that it is not for it to determine which labour legislation applies to the different categories of workers and public servants or, more specifically, whether or not certain categories of workers should be governed by special regulations or statutes. Whatever the solution chosen, it is, however, for the Committee to ensure that the workers covered by Conventions Nos. 87 and 98 enjoy the rights laid down in these Conventions.

The Committee accordingly recalls that under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), "all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206]. More precisely as concerns fire-fighters, the Committee of Experts on the Application of Conventions and Recommendations has considered that the functions exercised by this category of public servants should not justify their exclusion from the right to organize [see Freedom of Association and Collective Bargaining, 1994, para. 56].

As concerns the right to bargain collectively, the Committee points out that "all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service" [see Digest, op. cit., para. 793].

On the other hand, it is clear to the Committee that fire-fighters constitute an essential service in the strict sense of the term and therefore the right to strike can be prohibited for these workers. In the present case, the workers deprived of the right to strike should benefit from appropriate guarantees designed to safeguard their interests. For example, prohibition of the right of lock-out, provision of joint conciliation procedures, and only where conciliation fails, the provision of joint arbitration machinery. [See Digest, op. cit., para 551.]

Taking into account all of these elements, the Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the recognition of the right to organize and to bargain collectively of fire-fighters, it being understood that the right to strike can be prohibited for these workers. The Committee therefore firmly hopes that no trade union of fire-fighters will be dissolved.

606. In these circumstances, the Committee reiterates the conclusions it formulated at its November 1997 meeting recognizing the right of fire-fighters to organize and to bargain collectively, and in accordance with the administrative decision handed down by the labour inspectorate in this matter considers that the dismissed or transferred trade union officials should be reinstated in their former posts. Consequently, the Committee regrets that the judicial authority has provisionally suspended the decision to reinstate the union leaders until the case has been determined on its merits, particularly bearing in mind that this decision was taken immediately after the judicial appeal was instituted, that the dismissals and transfers date back to July 1997 and that, according to the complainant, the judicial proceedings can take a year or more. The Committee therefore requests the Government -- pending the handing down by the judicial authority of its decision -- to guarantee the reinstatement in their posts of the trade union officials of the complainant organization who were dismissed or transferred. Likewise the Committee requests the Government to send its observations concerning the allegation of arbitrary dismissal of other members of the complainant organization. Furthermore, with reference to the documentation sent by the complainant which states that the local and provincial authorities of the State of Miranda are seeking to eliminate the complainant union, the Committee requests the Government to guarantee the complainant its legal status as a trade union organization.

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

The Committee's recommendations

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

The Committee requests the Government to take all necessary measures to guarantee the maintenance in law and in practice of the right to organize and to bargain collectively of fire-fighters.
The Committee requests the Government to guarantee the legal status of the complainant organization as a trade union organization.
The Committee requests the Government to guarantee the reinstatement in their posts of the trade union officials belonging to the complainant organization who were dismissed or transferred, at least until the judicial authority has handed down its decision in this matter.
The Committee requests the Government to send its observations concerning the alleged arbitrary dismissal of various members of the complainant organization.
The Committee requests the Government to respond to the allegation that, on 14 and 20 August 1997, the trade union executives Messrs. Tomás Arencibia and Glácido Gutiérrez were summoned to appear before the Prefecture of the Paz Castillo Municipality of the State of Miranda and the Prefecture of the Libertador Municipality of the Federal District under penalty of imprisonment.

Geneva, 5 June 1998.

(Signed) Max Rood,
Chairman.

Points for decision:

Paragraph 89

Paragraph 270

Paragraph 544

Paragraph 106

Paragraph 367

Paragraph 556

Paragraph 122

Paragraph 392

Paragraph 575

Paragraph 133

Paragraph 431

Paragraph 591

Paragraph 184

Paragraph 473

Paragraph 608

Paragraph 242

Paragraph 507

Paragraph 254

Paragraph 516

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


Name	Complainant's latest allegation	Government's reply

Tang Yuanjuan	8 years' imprisonment
Leng Wanbao	Released
Li Wei	8 years' imprisonment
Wang Miaogen	Forcibly committed to a psychiatric institution
Hu Nianyou	Life imprisonment	Released
Yao Guisheng	15 years' imprisonment	15 years' imprisonment for pillage
Zhang Jingsheng	13 years' imprisonment
Wang Changhuai	13 years' imprisonment
Li Wangyang	13 years' imprisonment


Name	Complainant's allegation	Government's reply

Liu Jingsheng	15 years' imprisonment	Imprisonment for endangering state security
Hu Shigen	20 years' imprisonment	"
Kang Yuchun	17 years' imprisonment	"
Wang Guoqi	2-20 years' imprisonment	"
Lu Zhigang	"	"
Wang Tiancheng	"	"
Chen Wei	"	"
Zhang Chunzhu	"	"
Rui Chaohuai	"	Does not exist
Li Quanli	"	Imprisonment for endangering state security

Paragraph 89	Paragraph 270	Paragraph 544
Paragraph 106	Paragraph 367	Paragraph 556
Paragraph 122	Paragraph 392	Paragraph 575
Paragraph 133	Paragraph 431	Paragraph 591
Paragraph 184	Paragraph 473	Paragraph 608
Paragraph 242	Paragraph 507
Paragraph 254	Paragraph 516