ILO is a specialized agency of the United Nations
ILO-en-strap
Governing Body

GB.273/6/1
273rd Session
Geneva, November 1998

SIXTH ITEM ON THE AGENDA

311th Report of the Committee on Freedom of Association

Contents

Introduction

Case No. 1873 (Barbados): Report in which the Committee requests
to be kept informed of developments

The Committee's recommendation

Case No. 1934 (Cambodia): Interim report

The Committee's recommendations

Case No. 1969 (Cameroon): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendations

Case No. 1943 (Canada/Ontario): Interim report

The Committee's recommendations

Case No. 1951 (Canada/Ontario): Interim report

The Committee's recommendations

Case No. 1942 (China/Hong Kong): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendations

Case No. 1787 (Colombia): Interim report

The Committee's recommendations

Case No. 1865 (Republic of Korea): Interim report

The Committee's recommendations

Case No. 1966 (Costa Rica): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendations

Case No. 1954 (Côte d'Ivoire): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendations

Case No. 1961 (Cuba): Interim report

The Committee's recommendations

Case No. 1950 (Denmark): Definitive report

The Committee's recommendations

Cases Nos. 1851 and 1922 (Djibouti): Interim report

The Committee's recommendations

Case No. 1968 (Spain): Definitive report

The Committee's recommendation

Case No. 1956 (Guinea-Bissau): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendations

Case No. 1869 (Latvia): Report in which the Committee
requests to be kept informed of developments

The Committee's recommendation

Case No. 1944 (Peru): Report in which the Committee
equests to be kept informed of developments

The Committee's recommendations

Introduction

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 5, 6 and 12 November 1998, under the chairmanship of Professor Max Rood.

* * *

2. Currently, there are 67 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 11 cases and interim conclusions in eight cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

3. The Committee adjourned until its next meeting the examination of the following cases: Nos.1971 (Denmark), 1973 (Colombia), 1974 (Mexico), 1975 (Canada/Ontario), 1976 (Zambia), 1978 (Gabon), 1980 (Luxembourg), 1981 (Turkey), 1983 (Portugal), 1984 (Costa Rica), 1985 (Canada), 1986 (Venezuela), 1988 (Comoros), 1989 (Bulgaria), 1990 (Mexico), 1991 (Japan), 1992 (Brazil) and 1993 (Venezuela) 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. 1974 (Mexico), the Government stated that it would send its observations shortly.

Observations requested from governments

4. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1773 (Indonesia), 1888 (Ethiopia), 1930 (China), 1931 (Panama), 1949 (Bahrain), 1952 (Venezuela), 1962 (Colombia) and 1964 (Colombia). In Cases Nos. 1930 (China) and 1965 (Panama), the governments stated that they would send their observations shortly.

Observations requested from complainants
and governments

5. In Case No. 1929 (France/Guiana) the Committee is awaiting the complainant's comments and the Government's observations. The Committee requests them to send the observations and information requested without delay. In Case No. 1960 (Guatemala), the Committee requests the complainant and the Government to provide more detailed observations and information so that it can examine this case in full knowledge of all the facts.

Partial information received from governments

6. In Cases Nos. 1835 (Czech Republic), 1906 (Peru), 1939 (Argentina), 1953 (Argentina), 1963 (Australia), 1965 (Panama), 1970 (Guatemala), 1972 (Poland) and 1979 (Peru), the Governments have sent partial information on the allegations made. The Committee requests all of these governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

7. As regards Cases Nos. 1812 (Venezuela), 1880 (Peru), 1927 (Mexico), 1947 (Argentina), 1948 (Colombia), 1959 (United Kingdom/Bermuda), 1967 (Panama), 1977 (Togo), 1982 (Brazil) and 1987 (El Salvador), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

8. As regards Case No. 1955 (Colombia), the Committee observes that, despite the time which has elapsed since the submission of the complaint, it has not received the complete observations of the Government concerned. The Committee draws the attention of the Government 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 this case even if its complete observations or information have not been received in due time. The Committee accordingly requests this Government to transmit its observations or information as a matter of urgency.

Serious and urgent case which the Committee especially
draws to the attention of the Governing Body

9. The Committee again wishes to draw the special attention of the Governing Body to Case No. 1787 (Colombia) due to the extremely serious nature of the outstanding allegations [see 309th Report, para. 9]. Furthermore, it notes that the trade union situation prevailing in Colombia was the subject of a complaint made under article 26 of the ILO Constitution by several Worker delegates at the 86th Session of the International Labour Conference and that this complaint is being submitted to the present session of the Governing Body.

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: Argentina (Case No. 1887) and China/Hong Kong Special Administrative Region (Case No. 1942).

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

Case No. 1887 (Argentina)

11. In its meeting of June 1998 [see 310th Report, paras. 90-106], when examining allegations relative to restrictions on collective bargaining in virtue of the Decrees issued in December 1996 by the Executive Power (Decrees Nos. 1553, 1554 and 1556), the Committee requested the Government to keep it informed of developments concerning these decrees and the collective agreements adopted pursuant to them. In a communication dated 19 October 1998, the Government indicated that the Decrees in question had been left without effect by virtue of the approval by the National Congress of Act No. 25013 (2 September 1998) on labour reform. The Government adds that this Act establishes a system of collective bargaining which is in harmony with the principles of freedom of association, and was a product of the agreement reached with the workers' representatives, expressed through the General Confederation of Labour (CGT). The Committee takes due note of this information and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this new legislation.

Case No. 1862 (Bangladesh)

12. The Committee last examined the substance of this case at its November 1997 meeting [see 308th report, paras. 17-23]. On this occasion, the Committee requested the Government to:

13. In a communication dated 19 May 1998, the Government states that further inquiries on the trade union situation at Palmal Knitwear Factory Ltd are in progress; the Committee will be informed of the outcome of such inquiries in due course. While noting this information, the Committee regrets that the Government has not provided specific information on the matters expressly mentioned in point (b) above, despite their seriousness and the time which has elapsed since the Committee first examined the case; it therefore requests the Government to communicate the results of these inquires without delay.

14. As regards the need to review sections 7(2) and 10(1)(g) of the Industrial Relations Ordinance, 1969 (IRO), the Government reiterates that the IRO substantially conforms with the requirements of Conventions Nos. 87 and 98. Amendments to the IRO which would lead to the suppression of the membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments concerned for a union to be registered would result in a multiplicity of trade unions and jeopardize their effective functioning. The Government concludes that amendments in this regard cannot be insisted upon. While noting this information, the Committee recalls that for many years, the Committee of Experts on the Application of Conventions and Recommendations has been asking the Government to review these provisions in order to bring them into conformity with the principles of freedom of association [see observation, Report III, Part 4A. of 1997, p. 151 of the English text]. The Committee, like the Committee of Experts, considers that they unduly restrict the right of all workers to organize and urges therefore the Government to take the necessary measures in order to amend the legislation in this respect.

15. Regarding the granting of registration to the union formed at Saladin Garments Ltd., the Government repeats that the proposed trade union's application was rejected by the Registrar. The trade union appealed this decision and the case is still pending. Noting this information, the Committee reiterates its recommendation that the Government should take the necessary steps to ensure that the union is granted registration so as to enable it to exercise legitimate trade union activities and requests the Government to keep it informed in this regard.

16. As regards the inquiries into allegations of violations of trade union rights at Saladin Garments Ltd., the Government repeats that all the complainants are working in their respective fields peacefully and that the Director of Labour reached objective and fair conclusions through a neutral and independent inquiry. The Government therefore considers that no judicial inquiry is warranted in this case. The Committee regrets that the Government did not comply with its requests to institute an independent judicial inquiry in this regard and cannot but insist on the importance it attaches to such inquiry with a view to clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts.

17. Finally, the Committee regrets that the Government has not provided any information on its other recommendations, i.e. the outcome of the court cases filed by BIGU members and activists (points (c) and (e) mentioned above) and Ms. Kalpana's employment situation (point (c) above).

Case No. 1849 (Belarus)

18. During its last examination of this case at its meeting in November 1997, the Committee requested the Government to keep it informed of the measures taken: to amend Order No. 158 of 28 March 1995 to ensure that strikes may only be prohibited in essential services in the strict sense of the term; to revoke articles 1, 2 and 3 of Presidential Decree No. 336 which interfere with the free exercise of trade union rights; and to ensure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995 [see 308th Report, paras. 24-27].

19. In communications dated 15 May and 7 September 1998, the Government indicates that Presidential Decree No. 657 of 29 December 1997 has declared invalid paragraph 1 of Presidential Decree No. 336 which suspended the activities of the Free Trade Union of Belarus, Cell Union of Minsk Subway Workers. The Government further indicates that the Congress of Democratic Trade Unions of Belarus was registered by the Ministry of Justice on 19 December 1997; out of the 40 trade unions registered in the country, eight define themselves in their names as free, independent and democratic. As concerns the Act on the procedure for the settlement of collective labour disputes, the Government indicates that a draft Act concerning amendments and additions to this Act were approved by the Council of the Republic of the National Assembly at the end of June and has been submitted to the President for signature. According to the Government, this draft once adopted will resolve the problems which had arisen under Order No. 158 of 28 March 1995 which established the list of enterprises, the stoppage or interruption of whose activity would endanger the life and health of the population. The Government concluded by thanking the Office for the consultations and technical assistance provided in order to assist it in bringing its legislation into conformity with international labour standards.

20. The Committee notes this information with great interest. In particular, the Committee notes with satisfaction that the Presidential Decree suspending the Free Trade Union of Belarus (FTUB), has been revoked and that the Congress of Democratic Trade Unions of Belarus, an umbrella organization of which the FTUB is a member, has been registered. The Committee requests the Government to indicate whether paragraph 2 and, in particular, paragraph 3 of Presidential Decree No. 336, which establishes that activities of trade unions taking part in strikes on enterprises listed in Order No. 158 shall be terminated as per legal procedure, remain in force. As concerns the draft amendments to the Act on the procedure for the settlement of collective labour disputes, the Committee notes that the latest version provided to the Office represents a significant step towards recognition of the principle of the right to strike, in particular by proposing to repeal section 16 of the Act which sets forth the list of enterprises and services in which strikes may be restricted and upon which Order No. 158 was based. The Committee trusts that these draft amendments will enter into force in the near future and that they will ensure full conformity with the principles of freedom of association. It requests the Government to transmit the final version of the Act as amended. Finally, given that the Government has not provided any information in respect of the measures taken to reinstate the workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995, the Committee requests the Government to keep it informed of the measures taken in this regard.

Case No. 1509 (Brazil)

21. The Committee examined this case concerning the murder of the trade union leader Valdicio Barbosa dos Santos at its meeting in June 1998 [see 310th Report, para. 13] and requested the Government to keep it informed of the final outcome of the judicial proceedings and of the new inquiry to which reference had been made. In its communication dated 12 October 1998, the Government indicates in relation to the murder of trade union leader Valdicio Barbosa dos Santos that intense research was carried out within the proceedings under way in order to carry out a preventive detention of the accused persons, as well as to pursue the investigations in order to explain the responsibility for the theft of the murder weapon and to determine whether there were other persons involved in the crime. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the proceeding.

Case No. 1889 (Brazil)

22. The Committee examined this case at its March 1997 meeting [see 306th Report, paras. 152 to 176], when it insisted that the Government take measures to ensure that the fines imposed on the trade unions of the Single Federation of Oil Workers for their participation in strikes in the PETROBRAS enterprise in 1995 are annulled.

23. The Committee notes with satisfaction that in its communication dated 2 September 1998 the Government informs it that Act No. 9689, adopted on 14 July 1998, cancelled the fines imposed by the Supreme Labour Tribunal on the trade unions of the Single Federation of Oil Workers for their participation in strikes in the PETROBRAS enterprise in 1995.

24. However, the Committee once again requests the Government to consult the social partners on the content of Bill No. 1802/96 (which regulates the imposition of fines in the event of strikes deemed to be abusive or illegal) and hopes that the final text will take into account the results of these consultations and the principles set forth in the conclusions contained in the 306th Report of the Committee [paras. 171 to 175].

Case No. 1957 (Bulgaria)

25. At its meeting of June 1998, when it examined allegations relating to eviction from trade union premises occupied by a trade union organization and the confiscation of the union's property, the Committee, considering that the complainant organization had been deprived of the use of premises which it had used from 1992 to 1997, invited 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 it might set up its headquarters, and requested the Government to take the necessary steps without delay to ensure that all the equipment and documents confiscated from the complainant organization were returned to it [See 310th Report, para. 133(a) and (b)].

26. In its communication of 30 June 1998, the Government states that: (1) in order to allow the Ministry of Economics to use the premises occupied by the trade union organization GMH, in accordance with the legal authorization obtained by the Ministry to take over the premises in question, the office equipment and documents belonging to the GMH were moved and the premises where they were stored were sealed to ensure their safe keeping, not to prevent the complainant from using the equipment and documents in question; and (2) the GMH legally occupied the premises in question only during the period 1992-93, their occupation of the premises between 1994 and 1997 having been illegal; the GMH may, through the procedure established by the Cabinet in implementation of the State Property Law, ask for other premises to be allocated to it.

27. The Committee takes note of this information. With regard to the confiscation of material, equipment and documents belonging to the GMH, the Committee notes that the Government does not state whether these have been returned to the complainant. Under these circumstances, the Committee once again draws the Government's 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 their activities, contrary to the principles of freedom of association; the Committee requests the Government, if it has not already done so, to take steps without delay to ensure that all the property confiscated from the complainant organization is returned to it. With regard to the possibility of allocating premises to the GMH, the Committee invites the complainant organization to request that premises be allocated to it under the terms of the State Property Law, as the Government has suggested.

Case No. 1928 (Canada/Manitoba)

28. At its June 1998 meeting [see 310th Report, paras 134-184], the Committee examined this case concerning amendments to the Public Schools Act of Manitoba. The Committee urged the Government to take steps to have the amendments that circumscribe the jurisdiction of the interest arbitrators repealed, and to keep it informed in this regard. In a communication of 22 September 1998, the Government informs the Committee that section 129(3) and (4), which were referred to in the complaint, were amended during the committee stage of the legislative process, after consultation with and representations from various stakeholders and the general public. Pursuant to the amendments, "ability to pay" is now one of a number of factors that shall be considered by the arbitrator, rather than being the primary basis of his or her decision. The Government highlights the influence of the consultation process in this regard, and states that the amendments to the Public Schools Act came only after two major public consultations -- one in 1992 and the other in 1996. During the consultations in 1996, the Teacher Collective Bargaining and Compensation Review Committee held 11 public meetings at seven locations around the province. Over 2,000 people attended, 190 people made oral presentations, and 484 written submissions were received. The Committee held a special meeting to hear submissions from the various interested educational associations and stakeholder groups, and the public had the opportunity to make submissions to the legislative committee. Fifty-seven presentations were made to the legislative committee, including by representatives of teachers' associations, school boards and the Manitoba Teachers' Society. Furthermore, the Government states that prior to convening the Teacher Collective Bargaining and Compensation Review Committee, the Government invited the Manitoba Teachers' Society and the Manitoba Association of School Trustees to enter into discussions concerning what changes to the collective bargaining process might be appropriate. The Committee takes note of this information.

29. The Government contends that the amendments pursuant to the Public Schools Amendment Act, 1996, do not deny the right of teachers to bargain collectively or interfere with the independence of the arbitration process. The Government contests in particular the Committee's conclusion that issues such as the selection, appointment, assignment and transfer of teachers and principals, the method for evaluating the performance of teachers and principals, and the scheduling of recesses and the midday break are clearly related to conditions of employment. According to the Government, while it may be possible to so characterize these issues in a traditional workplace, the education system is not such a workplace. It states that these matters are all important areas having pedagogical impact. In addition, the Government states that there is nothing in the legislation restricting the ability of school boards and teachers' associations from negotiating these matters through the collective bargaining process. The Government, repeating what it had said in its earlier reply, notes that the legislation requires school divisions and districts to act reasonably, fairly and in good faith in administering policies relating to matters that have been statutorily excluded from arbitration. The Government states that since a breach of this duty is subject to arbitration, the divisions and districts do not have an absolute right to act unilaterally. The Government concludes that the changes requested by the Committee "are currently not warranted given the experience with the legislation to date".

30. The Committee regrets the Government's decision not to take steps to have the amendments repealed that circumscribe the jurisdiction of the interest arbitrators. The Committee again recalls 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 of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 782]. The Committee has always been conscious of the need to take into consideration the specificity of the education system when considering the scope of collective bargaining in that sector. Regarding the Government's assertion that the school boards and teachers' association are able to bargain collectively concerning the matters excluded from arbitration, the Committee repeats its earlier conclusion in this case 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" [see 310th Report, para. 176]. The provisions imposing an obligation on the school divisions and districts to act in good faith concerning the excluded subjects, cannot be considered as tantamount to collective bargaining, and it is not the type of compensatory measure considered by the Committee as adequate in the absence of the right to strike. The Committee recalls that compensatory measures should include adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage [see Digest, para. 547]. Considering the particular education system in Manitoba, the Committee again urges the Government to take steps to have the amendments to the Public School Act that circumscribe the jurisdiction of the interest arbitrators repealed and to keep it informed in this regard.

Case No. 1941 (Chile)

31. At its meeting of June 1998, when it examined allegations relating to the restitution of trade union assets confiscated during the 1973 coup d'état, the Committee urged the Government to take the necessary measures to ensure that the Act on the restitution or compensation of assets confiscated from the trade union organizations could enter into force without delay, and requested the Government to keep it informed of measures taken in this respect [See 310th Report, para. 254]. In its communication of 24 July 1998, the Government states that on 25 June 1998, the President of the Republic approved the Bill on the restitution or compensation of assets confiscated or acquired by the State and that the Bill in question was published in the Official Bulletin of Thursday, 23 July 1998 as Law No. 19.568. The Government also states that the Minister of National Property will receive any applications from natural or legal persons who may be affected and that a special office has been established to receive such applications and determine assets for restitution or appropriate compensation for the persons in question. The Government also sends a copy of Law No. 19568. The Committee notes this information with satisfaction.

Case No.1945 (Chile)

32. In a previous examination of the case [see 309th Report, paras. 56-68, adopted by the Governing Body at its March 1998 (271st) Session], certain allegations remained pending with regard to the dismissal of, or legal proceedings instituted against, trade union leaders. On that occasion, the Committee made the following recommendations [see 309th Report, para. 68]:

33. In its communication dated 22 July 1998, the Government states that Mr. Eduardo Araos Herrera and Rhona SA came to a settlement in the case before the Labour Tribunal of Viña del Mar; in accordance with this agreement, the enterprise paid all of the employment benefits which had been the subject of the action (US$30,000) and Mr. Araos Herrera renounced his employment and any other legal action in connection with the employment relationship between the two parties. With regard to the dismissals of the trade union leaders, namely Messrs. Sergio Antonio Cea Valenzuela, Sergio Silva and Jorge Muñoz, the Government forwarded extensive documentation and details regarding the various court decisions rejecting these unionists' complaints and indicates that the ruling handed down by the First Labour Tribunal of Valparaíso, rejecting the evidence regarding their status as workers and trade union leaders, is at present under appeal. The Committee requests the Government to keep it informed of the outcome of the appeal proceedings.

34. With regard to the detention and prosecution on charges of "contempt of authority" of the leaders of the Confederation of Bank Employees' Trade Unions, Messrs. Luis Pereira Concha, Nicolás Soto Reyes and Luis Mesina Marín, the Government reports that the proceedings have been stayed and, consequently, no sentence has been pronounced. The Committee takes note of this information.

Case No. 1850 (Congo)

35. The Committee examined this case at its June 1996 meeting [see 304th Report, paras. 199 to 220], June 1997 meeting [see 307th Report, paras. 102 to 122] and June 1998 meeting [see 310th Report, para. 14]. The Committee had requested the Government, with respect to the breaking up of a trade union meeting at the Pointe Noire labour exchange on 30 September by a detachment of the national police, resulting in many people being wounded, including Mr. Ngakoya, an employee of the national railways, to keep it informed of the findings of the inquiry and of the measures taken to punish those who are responsible for these reprehensible acts. In relation to the expulsion from Pointe Noire of the president of the Trade Union Confederation of Workers of Congo (CSTC) by the Public Prosecutor and the ban on his returning, the Committee asked the Government to annul this decision; on the subject of the expulsion of the CSTC from its premises, the Committee requested the Government to help, as far as possible, the CSTC to obtain new premises; in relation to protest strikes against the non-payment of salaries by the Government, the Committee called on the Government to revoke all anti-union reprisals that may have been directed against the strikers, and in particular dismissals and blacklisting. In addition, the Committee requested the Government to transmit a copy of the Bill relating to the right to strike in the public service before its adoption.

36. In a communication dated 12 October 1998, the Government indicates that the serious administrative and institutional disruptions which occurred in the country following the recent situation of war prevented it from conducting a thorough and objective inquiry into the events which took place more than five years ago concerning the violent breaking up of a trade union meeting at the Pointe Noire labour exchange in September 1993. While taking note of this information as well as the Government's statement that it is committed to the principles of freedom of association and that it will do its utmost to prevent such events in the future, the Committee insists once again on the need for an in-depth and independent inquiry in such circumstances. In addition, concerning the expulsion and the ban on his returning from Pointe Noire of the president of the CSTC, the Government indicates that the president of the CSTC has appealed against the decision of the Public Prosecutor. The Government explains that it did not feel bound by the decision of the Public Prosecutor and that it had authorized the president of the CSTC to return and stay in Pointe Noire and that the president of the CSTC had since resumed his trade union activities there. While noting this information with interest, the Committee requests the Government to send it a copy of the decision of the appeal body concerning the recourse against the decision of the Public Prosecutor.

37. Concerning the premises requested by the CSTC, the Government recalls that the recent war destroyed most of the infrastructure in Brazzaville but that it is nevertheless ready to examine any proposition which might be submitted by the CSTC in this respect. Insisting once again on the importance of an adequate protection for trade union assets and that, in this respect, the CSTC should be able to obtain premises for its trade union activities, the Committee asks the Government to keep it informed of any developments in this regard.

38. The Committee notes the information from the Government according to which the Bill on the right to strike was shelved following the recent political changes in the country. Finally, the Committee request the Government to keep it informed of the measures taken to revoke all anti-union reprisals (including dismissals and blacklisting) that may have been directed against the strikers who participated in the protest strikes against the non-payment of salaries in 1995.

Case No. 1870 (Congo)

39. The Committee examined this case at its November 1996 meeting [see 305th Report, paras. 134 to 147], June 1997 meeting [see 307th Report, paras. 13 to 16] and June 1998 meeting [see 310th Report, para. 14]. Having, amongst other things, requested the Government to send it a copy of all the judgements concerning legal proceedings against a number of trade unionists, the Committee notes with interest the information provided by the Government in its communication of 12 October 1998 stating that the legal proceedings against the trade unionists in the Criminal Court of the Brazzaville High Court and benefiting from parole on bail were acquitted by court decision on 17 September 1998.

Case No. 1594 (Côte d'Ivoire)

40. At its meeting of March 1998, the Committee requested the Government to do all it could to ensure that social elections were held as soon as possible at the Autonomous Port of Abidjan and to make sure that the first-level organizations affiliated to the trade union confederation, Dignité, were able to participate in them [see 309th Report, para. 17]. In its communication of 26 May 1998, the Government states that on 14 April 1998 elections for staff delegates took place at the Autonomous Port of Abidjan and attaches to its observations a copy of the election record, according to which the Free Trade Union of Dockers of the Autonomous Ports of Côte d'Ivoire (SYLIDOPACI) affiliated to Dignité participated in the elections. The Committee notes this information with interest.

Case No. 1824 (El Salvador)

41. The Committee examined this case at its meeting of November 1997 [see 308th Report, paras. 35-38] when it noted that the Government had not provided the information requested concerning the following recommendations:

42. The Committee, in November 1997, took note of the large volume of documentation sent by the Government on the different stages of the legal proceedings on the illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work against the trade union official Mr. Huezo.

43. In communications of 28 May and 3 July 1998, the Government informed the Committee that Mr. Huezo had been acquitted of the charges of abusive use of the right to strike and to work and resistance.

44. The Committee takes due note of this information. The Committee requests the Government to keep it informed of the outcome of the other charges against Mr. Huezo concerning false testimony, sequestration, murder threats, illegal detention, defamation and damages and interest. Finally, the Government urges the Committee to provide the information requested regarding the other allegations.

Cases Nos. 1512 and 1539 (Guatemala)

45. At its meetings in November 1997 and March 1998, the Committee requested the Government to keep it informed of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-94) [See 308th Report, para. 394(b) and 309th Report, para. 19]. In a communication dated 18 September 1998, the Government indicated that a copy of the report of the Commission will be transmitted to the Committee as soon as it has been submitted. The Committee notes this information and continues to await receipt of the report.

Case No. 1876 (Guatemala)

46. In its previous examination of the case in May-June 1998 [see the Committee's 310th Report, paras. 23-26] various allegations concerning detentions, acts of violence and anti-union discrimination against trade unionists remained pending.

Detentions and acts of violence

47. The Committee had requested the Government to keep it informed of developments in the inquiries into the alleged rape of trade unionist Vilma Cristina González and into the alleged detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enríquez García and Belarmino González de León [see 310th Report, para. 26]. In a communication dated 4 June 1998 the Government stressed that these persons -- who are going about their business as usual -- were still not collaborating with the authorities which is why no progress had been made in the inquiries. In this respect the Committee indicates that it will only pursue its examination of the allegations if the complainant organization sends additional information concerning the allegations and the lack of collaboration by the persons involved in the inquiries.

Acts of anti-union discrimination

48. The Committee made the following recommendations [see 310th Report, para. 26]:

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.

49. In its communication dated 4 June 1998 the Government stated that the legal proceedings relating to the dismissal of the trade unionists Juan José Morales Moscoso and Everildo Revolorio Torres were still under way. The Committee therefore once again requests the Government to keep it informed of developments in these procedures.

50. As regards the remaining allegations of anti-union discrimination, the Government stated in its communications of 4 June and 28 July and 18 September 1998 that the International Textile Corporation had now been replaced by another enterprise and that in any event no complaints were reported to the authorities. The Government added that the Las Delicias farm went out of business and paid all its workers 100 per cent severance pay. In respect to the El Salto enterprise, the Government made no specific reference to the allegations of anti-union discrimination and indicated that a draft collective agreement had been submitted and that the request for annulment made by the employer has been considered inadmissible. The Committee recalls the fact that it examined these allegations for the first time in November 1997 [see 308th Report, para. 392] when it stressed the importance of remedying all acts of discrimination. The Committee regrets that in the meantime the authorities have not carried out timely inquiries into these acts, that two of the enterprises (International Textile Corporation and Las Delicias farm) have ceased to exist, and that as a result it is not possible to redress the alleged acts of anti-union discrimination. The Committee requests the Government to carry out an inquiry, to reply specifically to the allegations of discrimination in the third enterprise (El Salto farm) and to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activities. The Committee requests the Government to keep it informed in this regard.

Case No. 1936 (Guatemala)

51. This case relates to a collective dispute between the Trade Union of Workers of the National Electrification Institute and the Institute, which occurred when the trade union denounced the collective agreement in April 1997, and that gave rise to legal procedures (relating to the dismissal of four trade union leaders) and criminal proceedings (lodged by the Institute and the trade union respectively). In its previous examination of the case, observing that a new collective agreement had been negotiated and that industrial relations had improved, and given that the parties had expressed their willingness for the legal action taken under the penal law to be entirely withdrawn, the Committee requested the Government -- in view of the current favourable industrial relations climate -- to confirm that all legal procedures and criminal proceedings concerning the complainant trade union and the National Electrification Institute had been withdrawn [see 309th Report, para. 272]. In communications dated 4 June and 24 July 1998, the Government states that the Institute withdrew the legal procedures. As regards the criminal proceedings, one of these relates to the theft of an item of movable property belonging to the Institute, and the Government indicates that the complaint lodged with the public prosecutor has not been activated. The other criminal proceeding is an individual action lodged by the administrative manager of the Institute against a group of workers; he has decided not to withdraw it for the moment. The Committee notes this information and requests the Government to keep it informed of the outcome of these criminal proceedings.

Case No. 1854 (India)

52. The Committee last examined the substance of this case at its March 1997 meeting [see 306th Report, paras. 426-476]. On this occasion, the Committee requested the Government to keep it informed of the outcome of the criminal proceedings under way against Messrs. Shravan Giri and Tapan Kumar Chaki who confessed to the murder of Ms. Ahilya Devi and the developments regarding the arrest of Messrs. Kumar Mandal, Narsingh Singh, Bhrigu Nath Gupta and Ratan Ghosh who have been implicated in the murder of the trade unionist Ms. Ahilya Devi.

53. In a communication dated 25 May 1998, the Government specifies that Messrs. Kumar Mandal, Bhrigu Nath Gupta and Ratan Ghosh were arrested in 1996; formal charge sheets against these men were filed in courts in 1996 and 1997. On 10 July 1997, Mr. Narsingh Singh surrendered; supplementary charges were filed in court against him. In addition, the Government indicates that Mr. Muna Punjabi, alias Jai Prakash Singh, was arrested in 1996 and formally charged on 25 August 1996. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the criminal proceedings initiated against these men.

Case No. 1890 (India)

54. The Committee last examined this case at its March 1998 meeting [see 309th Report, paras. 20-23]. On this occasion, the Committee requested the Government to continue to keep it informed of the outcome of the proceedings concerning the dismissal of Mr. Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU) and, given its conclusions that he was dismissed on account of trade union status and activities, urged the Government to take the necessary steps to have him reinstated in his post if he so desires. The Committee also requested the Government to take the appropriate steps to ensure that the management inquiries on alleged acts of misconduct of 15 FABREU members were dropped and to obtain the employer's recognition of FABREU for collective bargaining purposes.

55. In a communication dated 17 July 1998, the Government indicates that the proceedings concerning the dismissal of Mr. Malwankar and the inquiries of seven FABREU members who are under suspension pending their completion are still in progress. Any governmental intervention at this stage in both cases would not be in conformity with the law and practice. As regards the other eight FABREU members who were transferred by the company to other establishments, the Government has already referred to the Industrial Tribunal the cases of six of them since one has been dismissed and the other has resigned. Finally, the Government specifies that under the Industrial Disputes Act, 1947 and the Trade Union Act, 1926, it has no authority to compel any employer to recognize any trade union.

56. While taking note of this information, the Committee requests the Government to continue to keep it informed of the outcome of the proceedings concerning the dismissal of Mr. Malwankar and, since he was dismissed on account of his trade union activities, urges again that Mr. Malwankar be reinstated in his post, if he so desires.

57. As regards the management inquiries which are in progress and concern seven workers, the Committee notes the government information that any intervention at this stage in these procedures would not be in conformity with the law and practice; however, the Committee must recall its previous conclusions that these inquiries constituted anti-union discrimination and requests the Government to ensure that they are dropped.

58. As regards the eight other workers who were transferred to other establishments and also subjected to inquiries, the Committee notes that one of them was dismissed, another resigned and the cases of the other six are pending before the Industrial Tribunal. In this regard, the Committee reiterates its previous conclusions that these inquiries are of an anti-union nature as are measures taken pursuant to them, such as transfer or dismissal. The Committee urges therefore that these workers be reinstated in their initial post, if they so wish, and requests the Government to keep it informed of the outcome of the six cases pending before the Industrial Tribunal.

59. Finally, concerning the recognition of FABREU as collective bargaining agent, the Committee takes note of the information provided by the Government that it has no authority to compel any employer to recognize any trade union; the Committee nevertheless recalls that recognition by an employer of the main unions represented in his undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking [see Digest, op. cit., para. 822] and insists on the importance that the employer recognizes FABREU for collective bargaining purposes. The Committee requests the Government to keep it informed of any progress in this regard.

Case No. 1920 (Lebanon)

60. At its November 1997 meeting, the Committee had requested the Government to specify whether judicial recourse had been taken concerning the contested results of the elections of the trade union leaders of the General Labour Confederation of Lebanon (CGTL) held on 24 April 1997, and to keep it informed of the result. Furthermore, concerning the arrest of the trade union leaders Mr. Abou Rizk and Mr. Yasser Nehmi, and their subsequent prosecution, the Committee had urged the Government to do everything in its power to ensure that the charges brought against them were withdrawn immediately [see 308th Report, para. 525.]

61. In a communication dated 9 January 1998, the Government stated that the court of first instance of Beirut had decided, on the grounds of procedural irregularity, to dismiss the request for the annulment of the elections within the CGTL.

62. In a communication dated 10 September 1998, the Government indicated that on 30 July 1998 new elections were held for the post of President of the General Labour Confederation of Lebanon, in which all the trade union federations participated. These elections were held under the supervision of the Ministry of Labour, which validated the results on 6 August 1998. Mr. Abou Rizk was elected President of the General Labour Confederation of Lebanon and Mr. Yasser Nehmi a member of the Confederation's executive committee. The Committee notes this information with satisfaction.

Case No. 1940 (Mauritius)

63. The Committee examined this case at its March 1998 meeting [see 309th Report, paras. 273-288]. It had requested the Government to keep it informed of whether the prosecutions of 11 trade unionists had been carried out and if that was the case, to do everything in its power to ensure that the charges brought against these union leaders be withdrawn immediately.

64. In a communication dated 25 May 1998, the Government indicates that the Director of Public Prosecutions has decided not to prosecute the 11 trade union leaders. The Committee notes this information with satisfaction.

Case No. 1894 (Mauritania)

65. At its meeting of June 1998, the Committee requested the Government to do everything possible to ensure that the Mauritanian Transport Workers' Federation could obtain legal recognition as soon as possible and to keep it informed of measures adopted in this regard [see 310th Report, paras. 30-34]. In its communication of 11 July 1998, the Mauritanian Transport Workers' Federation states that to date it has not been granted recognition. Under these circumstances, the Committee reminds the Government that under Article 2 of Convention No. 87 workers shall have the right, without distinction whatsoever, to establish and to join organizations of their own choosing without previous authorization, and once again requests the Government to take the necessary measures to ensure that the trade union organization in question can obtain legal recognition.

Case No. 1698 (New Zealand)

66. When it last examined this case at its March 1998 meeting, the Committee again recalled that provisions that prohibit strikes concerning whether a collective employment contract will bind more than one employer, are contrary to the principles of freedom of association on the right to strike. Therefore, the Committee again requested the Government to amend section 63(e) of the Employment Contracts Act (ECA) and to keep it informed of any measures envisaged in this respect. It also requested the Government to keep it informed of any progress made in introducing the concept of "fair bargaining" into the ECA [see 309th Report, paras. 30-32].

67. In a communication dated 28 May 1998, the Government states that no amendments to section 63(e) are being considered. It again reaffirms the view that section 63(e) protects the right of both employers and employees to choose the coverage of employment contracts. The Government states that "employers should not be compelled to be bound into arrangements with other businesses, which may undermine their interests. Once the structure is agreed, strikes and lockouts may be used in support of the negotiation of the content of the contract". On the question of fair bargaining, the Government indicates that it has been considering the issues relating to bargaining, particularly the recognition of the employees' representative. It notes the existence of a coalition agreement covering a wide range of interrelated industrial relations issues and indicates the Government's plan to announce its conclusions on these issues as an integrated policy "within the next few weeks". The Government also supplied information on recent cases concerning the application of the ECA.

68. With respect to section 63(e), the Committee notes with regret that the Government in its response once more repeats the same arguments. The Committee recalls once again that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 475]. This right is stated in broad terms, and does not apply merely in relation to the content of collective agreements. The Committee urges the Government to amend section 63(e) and to keep it informed in this regard. The Committee also notes that the Government's conclusions on the issue of recognition of workers' organizations for purposes of collective bargaining were due to be released some months ago. The Committee, therefore, requests the Government to forward this information to it, and recalls the importance which it attaches to the right of representative organizations to negotiate.

Case No. 1864 (Paraguay)

69. During its previous examination of the case, the Committee had requested the Government to confirm that there were no charges pending against trade unionists in connection with the strike which took place in the EXPCAR enterprise in October 1995 [see 307th Report, para. 433, adopted by the Governing Body at its June 1997 (269th) Session]. In its communication of 28 May 1998, the Government confirms that there are no pending charges against them. The Committee takes note of this information.

Case No. 1891 (Romania)

70. At its March 1998 meeting [see 309th Report, para. 33] the Committee had asked the Government to send information on developments in this case and to communicate as soon as possible a copy of the new law on the settlement of labour disputes in order to bring its legislation into conformity with the principles of freedom of association.

71. In a communication dated 7 September 1998, the Government states that the Bill amending Act No. 15 respecting labour disputes has not yet been approved by Parliament, but that a copy of it will be sent to the ILO as soon as it is published in the Official Gazette. The Government indicates the amendments introduced by the Bill, i.e. that the compulsory arbitration provided for in sections 38 and 43 will be replaced by a conciliation, mediation and arbitration procedure decided at the request of the two parties, that employers may only petition the court to suspend a strike for 30 days (instead of 90 days) if the strike endangers the life or health of persons (section 30) (instead of major interests of the national economy), and that section 13(3), which lays down the requirement of three years' length of service in the enterprise in order to be eligible for trade union office, and sections 32(3) and 36(3), which provide for financial liability of organizers of a strike held without observing the procedures, have not been retained in the Bill. The Government adds that strikes will be prohibited only for (a) prosecutors, judges and military personnel of the Ministries of Defence, the Interior and Justice and the units subordinate to them and (b) employees of the national energy system, operational services of nuclear reactors, units with continuous furnaces, the stoppage of which would carry a risk of explosion, and units filling orders to meet national defence needs. However, it adds that employees referred to under (b) may request mediation by the Economic and Social Council in the event of conflicts of interest. Air, naval and land transport employees may not declare a strike after leaving and before reentering the country, and personnel on board merchant marine vessels flying the Romanian flag may not declare a strike except in conformity with the standards laid down in international conventions ratified by Romania. Lastly, in the health sector, telecommunications, radio and television, transport units and the railways, including railway guards, public transport units and those responsible for sanitation, as well as gas, electricity, heating and water supply, strikes are authorized on condition that their organizers ensure essential services at a third of normal levels of activity at least (the Bill does not retain in the list employees of pharmaceutical units, teachers, those engaged in rolling stock repair and those supplying the population with bread, milk and meat).

72. The Committee notes this information with interest and trusts that the text in question will be adopted shortly. It requests the Government to send a copy of the amendments to Act No. 15 respecting labour disputes once they have been adopted.

Case No. 1618 (United Kingdom)

73. At its March 1998 meeting, the Committee had requested the Government to keep it informed of any progress made in providing express legislative protection against blacklisting or other forms of discrimination based on past trade union membership or activities [see 309th Report, paras. 34-36].

74. In its communication of 27 May 1998, the Government informs the Committee of the publication of a consultative White Paper entitled "Fairness at work" which contains a proposal to outlaw both discrimination against trade union members and the blacklisting of trade union activists. The Government indicates its intention to provide in due course full details of its proposed action in this regard.

75. The Committee notes this information with interest and encourages the Government to adopt, as soon as possible, provisions ensuring protection against anti-union discrimination, including blacklisting, based on trade union membership or activities. The Committee requests the Government to keep it informed of the outcome of the consultation process and the status of the proposals.

Case No. 1852 (United Kingdom)

76. At its March 1998 meeting, the Committee noted with interest the Government's indication that a White Paper on "Fairness at work", with a focus on union recognition, was being prepared, and expressed the hope that any resulting legislation would have as an effect the encouragement of employer recognition of representative workers' organizations. The Committee also called on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organizations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requested to be kept informed concerning these matters [see 309th Report, paras. 308-342]. In its communication of 27 May 1998, the Government informs the Committee of the publication of the consultative White Paper entitled "Fairness at work". The Government states that the White Paper covers many of the issues raised by this case and that the Government is "currently considering the full implications of the White Paper's legislative proposals, which will be taken forward in full consultation with the social partners, and will provide a full and up to date response ... as soon as possible".

77. The Committee notes this information and requests the Government to keep it informed of the outcome of the consultation process and the status of the proposals. It also requests the Government to provide information arising out of the specific facts of the case, which are not addressed in the White Paper. In particular the Committee recalls that it had requested the Government to take measures to ensure that the ISTC is afforded reasonable access to Co-Steel both for contact with its members and potential members, and requested the Government to keep it informed in this regard.

Case No. 1912 (United Kingdom/Isle of Man)

78. The Committee had examined this case at its March 1998 meeting [see 309th Report, paras. 343 to 370]. It had requested the Government, inter alia, to take the necessary measures to ensure as soon as possible the reinstatement of Mr. Harrison to his former employment and to amend the relevant legislation to ensure protection against dismissal and other prejudicial acts for participating in industrial action.

79. In a communication dated 28 September 1998, the Government indicates that Mr. Harrison did not exercise his right under the MEA's Agreed Internal Disciplinary Procedure to appeal to an independent person if he believed his downgrading to be unjust. The Government also indicates that the MEA continues to offer a range of training and development opportunities which would facilitate promotion, should Mr. Harrison choose to apply for a post at his previous grade. Finally, the Government indicates that the relevant legislation is currently under review.

80. The Committee takes note of this information. It requests the Government to keep it informed of all measures taken or envisaged in order to amend its legislation to ensure protection against dismissal and other prejudicial acts for participating in industrial action.

Case No. 1843 (Sudan)

81. The Committee last examined this case concerning allegations of dismissals, arrest, detention, torture and death of trade unionists, at its March 1998 meeting [see 309th Report, paras. 371-386]. The Committee, regretting that the Government had responded only partially to the serious allegations presented, requested the Government to provide it with further information. The Committee also drew the Governing Body's attention to this case due to the seriousness and urgency of the issues raised [see 309th Report, para. 9].

82. In its communication of 15 October 1998, the Government informs the Committee that with respect to the recommendations of the appeal body established for the re-examination of complaints of unfair dismissal, the President issued decrees to the concerned ministries and institutions containing the names of the workers benefiting from the decision of the appeal body. The decree instructs them to take immediate action to reinstate the workers or improve their pensions according to the recommendations of each individual case. The Committee recalls that in its previous report, it expressed its deep regret that the Government had provided only very partial information on the situation of the workers whose names appeared in the appendices of the interim report on this case [see 306th Report, paras. 601-618]. The Committee deplores the fact that the Government has again provided only very partial information and insists that the Government provide specific and detailed information on the situation of each of the workers noted in the appendices to the 306th Report. The Committee would also request the Government to forward copies of any written reasons or recommendations of the appeal board, as well as copies of the presidential decrees referred to above.

83. Regarding the allegations of arrest and detention of trade unionists, often accompanied by acts of torture, the Government states that the Ministry of Manpower addressed a letter to the Sudanese Advisory Council for Human Rights in the Ministry of Justice to handle the case involving Messrs. Abdel Moniem Suliman, Abdel Moniem Rahma, Mohamed Babiki and Yousif Hussain. With respect to Messrs. Osman Abdel Gadir and Daoud Suliaman, the Government asserts that they led an illegal strike and had their employment terminated in conformity with the law. Concerning the allegations regarding Mr. Ahmed Ali, the Government states that since the name is an extremely common one, further information is required before it would be possible to investigate the allegations. On the last point, the Committee requests the complainant to forward to the Committee further information so that the person in question can be identified. With respect to Messrs. Osman Abdel Gadir and Daoud Suliaman, the Committee deeply regrets that the Government did not address the specific and very serious allegations of detention and torture. Furthermore, the Committee regrets that with respect to all of the persons named, the Government has not yet opened an inquiry. The Committee again urges the Government to open an inquiry to establish the precise circumstances in which the above-noted persons were detained, tortured or killed, and to take the necessary steps for legal proceedings against those responsible and the redress of the prejudice suffered.

84. The Government, in reply to the Committee's final recommendation concerning the need to review the national legislation as soon as possible due to the many and serious incompatibilities with freedom of association principles, states that a tripartite committee has almost completed reviewing the Trade Union Act, 1992, taking into consideration the observations of the ILO supervisory bodies. The Government states further that on 30 June 1998, the President of the Republic signed the new Constitution of Sudan, article 26(1) of which provides that "citizens shall have the right of association and organization for cultural, social, economic, professional or trade union purposes without restriction, save in accordance with the law". The Committee takes note of this information, and requests the Government to inform it of the results of the tripartite committee's review, to forward copies of any report or recommendations of that committee, and to inform it of the steps to be taken and time frame foreseen for the implementation of any recommendations made.

Case No. 1884 (Swaziland)

85. During its last examination of this case at its meeting in May-June 1998, the Committee urged the Government to take the necessary measures to ensure that the Industrial Relations Bill would be adopted in the near future and that, in its final form, it would maintain the changes made in response to the Committee's previous recommendations so as to ensure full respect for the principles of freedom of association. Furthermore, the Committee once again urged the Government to repeal section 12 of the 1973 Decree and to ensure that the 1963 Public Order Act be amended so that it could no longer be used for the purpose of oppressing legitimate and peaceful strike action. Finally, the Committee once again urged the Government to establish independent investigations into the death of the 16 year-old schoolgirl killed by a stray bullet during the January 1996 stay-away, the abduction of Jan Sithole in August 1996 and the dismissal of Jabulani Nxumalo. [See 310th Report, para. 591.]

86. In a communication dated 22 September 1998, the Government indicates that Cabinet passed the Industrial Relations Bill on 5 August 1998 (now Bill No. 13 of 1998) and that, in its present form, it maintains the major changes which had been introduced in response to previous recommendations (a copy of the Bill was provided). This Bill, however, could not be referred to Parliament as the latter was dissolved within the statutory 30 days of the Bill's publication. Other legislative procedures were procured, however, and the Bill has since been referred to the Council of Ministers which began its debate thereon on 15 September. As concerns the 1973 Decree and the 1963 Public Order Act, the Government indicates that the concerns raised by the Committee should be addressed by the Industrial Relations Bill once it becomes law. As concerns the independent investigations requested by the Committee, the Government believes that it has adequate facilities in the Royal Swaziland Police to carry out such investigations and has not yet decided on the establishment of an independent investigation. As concerns Mr. Jabulani Nxumalo, the Government indicates that it had no responsibility for his dismissal nor any legal authority or knowledge of his engagement or dismissal. In addition, Mr. Nxumalo, according to the Government, does not insist on reinstatement with his former employer, with whom he presently has business dealings. According to the Government, he does not appear to desire reinstatement.

87. The Committee takes note of this information. It notes in particular that the Industrial Relations Bill has been passed by Cabinet and is currently being debated in the Council of Ministers. The Committee must once again expresses the firm hope that this Bill will be adopted in the very near future and that, in its final form, it will ensure full respect for the principles of freedom of association and requests the Government to keep it informed in this regard. As concerns the Government's statement that any difficulties having arisen from section 12 of the 1973 Decree on the rights of organizations and the 1963 Public Order Act will be resolved as soon as the Industrial Relations Bill becomes law, the Committee indeed notes that the 1973 Decree and the 1963 Act, while concerning more generally mass actions which would result in a disturbance of the peace, had been used in the past to suppress strike action which would appear now to be granted by way of right in the Industrial Relations Bill. Furthermore, section 103(1) of the Bill provides that a person holding a public office, or acting or purporting to act on behalf of anyone holding such office, shall not exercise any power conferred by or under any law in such a way as to impede the exercise of rights conferred or recognized by this Act. The Committee expresses the firm hope that, with the passage of this Bill, the 1973 Decree and the 1963 Public Order Act will no longer be used to suppress legitimate trade union activities.

88. Regarding the call to establish an independent investigation into the death of a 16 year-old schoolgirl during a mass stay-away and the abduction of Mr. Sithole, while noting the Government's indication that it considers an investigation by the police to be sufficient, the Committee first notes that it has not been informed of the outcome of any investigations into either of these matters which occurred over two years ago. Secondly, given that the allegations in the original complaint queried the police involvement in these incidents, the Committee considers that an independent inquiry into these matters would be necessary to assure the parties that all elements were considered without any bias and to ensure full confidence in the conclusions drawn. In the light of these considerations, the Committee would once again urge the Government to establish independent investigations into these two matters and to keep it informed of the outcome. Finally, the Committee notes from the Government's reply that, while indicating that Mr. Nxumalo does not desire to be reinstated in his post, it would appear that there has not been an investigation into the reasons for his dismissal. While further noting the Government's indication that it was not involved in the recruitment or in the dismissal of Mr. Nxumalo, the Committee would recall that it is the responsibility of the Government to ensure that the principles of freedom of association are respected throughout its territory. The Committee would recall, in this respect, that it has been alleged that Mr. Nxumalo was dismissed because of his trade union activity, in violation of the principles of freedom of association. The Committee would once again request the Government to investigate the circumstances surrounding Mr. Nxumalo's dismissal and, in the event it is determined that he was dismissed because of his trade union activity, to ensure that he is appropriately compensated, if indeed he does not wish to be reinstated. The Committee requests to be kept informed of the measures taken in this regard.

Case No. 1581 (Thailand)

89. At its March 1998 meeting, the Committee urged that all necessary measures be taken so that the State Enterprise Labour Relations Bill, in its final form, would be in conformity with the principles of freedom of association [see 309th Report, paras. 37 and 38]. In a communication dated 8 June 1998, the Government indicated that the adoption of the Bill was delayed due to the disapproval of the House of Representatives. According to the relevant constitutional requirements, the Government specifies that the House of Representatives may take up the original Bill (the one earlier approved by the House of Representatives last February 1997) or the Bill amended by a joint ad hoc committee, and then vote again on this issue. The Government adds that it has committed itself to reforming the SELRA so as to bring it closer into conformity with international norms, and that it is determined to improve workers' rights, taking into account Thailand's economic, social and development needs and international standards. Finally, the Government declares that the amendments to the SELRA 1991 would restore several international fundamental rights for workers in organizing and collectively bargaining.

90. The Committee has recently been informed that the earlier version of the Bill referred to by the Government was adopted by the House of Representatives in September 1998, but has been challenged before the Constitutional Court. The Committee requests the Government to keep it informed of any developments in this regard and to provide a copy of the Bill which has been passed by the House.

Case No. 1886 (Uruguay)

91. At its meeting in March 1998 the Committee requested the Government to send it, as soon as it is handed down, a copy of the ruling of the Administrative Court relating to the allegations of anti-union discrimination arising from the nomination of only non-union members to executive positions within Lloyds Bank [see 309th Report, para. 43]. In a communication dated 14 August 1998, the Government states that the case is being examined by the State Prosecutor for administrative litigation who must give his ruling before the case is presented to the judges of the Administrative Court for examination and the corresponding ruling. The Government also states that it will inform the Committee of the outcome of the proceedings in good time. The Committee takes note of this information. Once again the Committee expresses the hope that these proceedings will be concluded shortly and requests the Government to send it a copy of the ruling as soon as it is handed down.

Case No. 1937 (Zimbabwe)

92. At its meeting of March 1998, when it examined allegations relating to violations of the right to strike and anti-union dismissals, the Committee: (1) urged the Government to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act as revised in 1996, which grants the labour authorities the power to refer disputes to compulsory arbitration whenever it considers this to be appropriate, so as to ensure that such compulsory arbitration may be imposed only with respect to essential services and in cases of acute national crisis; and (2) requested the Government to take the necessary measures to ensure that those workers who were dismissed for their participation in the Standard Chartered Bank strike of April 1997 are reinstated in their posts under the same terms of employment and with the same benefits as they enjoyed before the strike, and to take the necessary steps to amend section 107(5) of the Labour Relations Act to ensure that workers are not discriminated against in their employment for engaging in legitimate trade union activities. The Committee requested the Government to keep it informed of the progress made in this regard [see 309th Report, para. 452(a) and (b)].

93. In its communication of 30 May 1998, the Government states that in December 1997 the High Court rejected the case of the dismissed bank workers and that subsequently the workers in question lodged an appeal against that ruling before the Supreme Court. The Government states that the judicial system and the current proceedings must be respected and that the Government and the trade union organization in question will have to abide by the Supreme Court's ruling, since the doctrine of the separation of powers prevails in Zimbabwe.

94. In a communication dated 13 October 1998, the complainant indicates that the Supreme Court has ruled against the reinstatement of the bank workers and provides a copy of the court judgement.

95. The Committee takes note of this information. It recalls that in its previous examination of this case, it had observed that the mass dismissals of strikers at Standard Chartered Bank were based on a disposal order issued by the labour officer which provided that the employer could take any disciplinary action which he deemed fit against any employee failing to comply with the order. Yet, the compulsory arbitrations imposed by the order, and the order as a whole, have been considered by the Committee to be contrary to the principles of freedom of association. The Committee further notes that neither the Supreme Court nor the High Court considered these matters in their review. Under these circumstances and recalling that the dismissal of workers for participating in a legitimate strike constitutes discrimination in employment, the Committee urges the Government to take all necessary steps, in accordance with the above-noted principles, to ensure that the dismissed workers are reinstated in their posts as soon as possible and to keep it informed in this regard. Lastly, the Committee notes that the Government has not replied in respect of its recommendation to amend the Labour Relations Act and requests the Government to keep it informed of any steps taken or envisaged in this regard.

* * *

96. Finally, as regards Cases Nos. 1809 (Kenya), 1813 (Peru), 1819 (China), 1826 (Philippines), 1834 (Kazakhstan), 1837 (Argentina), 1900 (Canada/Ontario), 1908 (Ethiopia), 1914 (Philippines), 1916 (Colombia), 1921 (Niger), 1925 (Colombia) and 1938 (Croatia), 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. 1719 (Nicaragua), 1796 (Peru), 1877 (Morocco), 1883 (Kenya) and 1895 (Venezuela), which it will examine at its next meeting. Finally, the Committee requests the Government to send its complete observations in Case No. 1785 (Poland).

 

Case No. 1873

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

Complaint against the Government of Barbados
presented by
the National Union of Public Sector Workers (NUPW)

Allegations: Restrictions on collective bargaining in the public sector

97. The Committee already examined the substance of this case at its June 1997 meeting, when it presented an interim report to the Governing Body [see 307th Report, paras. 88 to 101, approved by the Governing Body at its 269th Session (June 1997)]. In the light of the very partial observations sent by the Government in a communication dated 9 September 1997, the Committee, at its November 1997 meeting, decided to adjourn its examination of this case [see 308th Report, para. 5]. At its May-June 1998 meeting, the Committee addressed an urgent appeal to the Government to send its observations [see 310th Report, para. 9]. The Government has not sent any new observations to date.

98. Barbados 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

99. The National Union of Public Sector Workers (NUPW) presented allegations to the effect that the Government had departed from any established collective bargaining practices by unilaterally imposing a new wage plan on the majority of public workers. The NUPW further alleged that although there were six other workers' organizations that had accreditation as bargaining bodies, the NUPW's membership was substantially larger than the combined membership of the other organizations and that they transcend more categories of workers.

100. The Government, for its part, sent information in which it indicated that contrary to the complainant's claim, the Government did reach an agreement with a majority of trade union bodies representing the majority of civil servants. It added that it did not act in bad faith nor in a manner contrary to the previously agreed protocol but that it could not pay the members of the NUPW at one rate and members of the umbrella body of trade unions at another rate.

101. The Committee, in its previous conclusions, had indicated that it could not conclude from the allegations at hand that the Government had refused collective bargaining altogether or that it had negotiated in deliberate bad faith.

102. At its June 1997 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

B. The Government's new reply

103. In a communication dated 9 September 1997, the Government sent a very partial reply where it only indicated that it was unable to complete a report to the ILO by the due date and it requested assistance with the structuring of the questionnaire on the verification of which union represented the majority of workers in the public sector in Barbados. In addition, the Government sent a copy of a communication which it had addressed to the NUPW on 26 July 1998, where it asked the NUPW whether it was still interested to pursue the matter relating to this complaint. Since that date, the Government has sent no new information.

C. The Committee's conclusions

104. The Committee regrets that, despite the time which has elapsed since the complaint was presented, the Government has only sent very partial information in reply to allegations of the complainant organization, although it was invited on several occasions, including by means of an urgent appeal, to present its comments and observations on this case.

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

106. The Committee reminds the Government that the purpose of the whole procedure instituted by the International Labour Organization to examine alleged violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee is convinced that, if it protects governments against unreasonable accusations, governments on their side must recognize the importance for the protection of their own good name of formulating for objective examination detailed factual replies to such allegations made against them. [See the Committee's First Report, para. 31].

107. The Committee recalls that the allegations in this case refer to restrictions on collective bargaining in the public sector by the Government which imposed unilaterally a new wage plan on the majority of public workers.

108. With regard to the allegation that a minority agreement between the Government and other public sector bargaining bodies was imposed on the general public services, the Committee indicated previously that this raised the question of the recognition of the most representative organizations in an industrial relations system, according to which the negotiating agent representing the most representative trade unions has a priority with regard to collective bargaining. Concerning this aspect of the case, the Committee can only recall that the competent authorities should, in all cases, be able to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. The Committee regrets that more than one year after its recommendations, the Government has still not proceeded to such a verification. Therefore, the Committee once again urges the Government to proceed without delay to such a verification as to whether or not the NUPW represents the majority of the workers in the public sector. The Committee requests the Government to send it the results of this verification as soon as possible.

109. Furthermore, the Committee recalls that the International Labour Office remains at the disposal of the Government to provide technical assistance with respect to the problems raised in this case.

The Committee's recommendation

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

Case No. 1934

Interim report

Complaint against the Government of Cambodia
presented by
the World Confederation of Labour (WCL)

Allegations: Violations of the right to form a trade union,
the right to strike and collective bargaining, dismissals of
trade unionists, pressure on and threats against trade unionists

111. The Committee examined this case at its November 1997 meeting during which it formulated a number of interim conclusions. [See 308th Report, paras. 85 to 138, approved by the Governing Body at its 270th Session in November 1997.] At its meeting in March 1998 [see 309th Report, para. 6], the Committee, having received the Government's partial observations, decided to adjourn its examination of the case. At its meeting in May-June 1998 [see 310th Report, para. 8], the Committee, having received the Government's observations late, proposed to examine them at its next meeting.

112. The Government sent its observations in communications dated 2 December 1997 and 7 May 1998.

113. Cambodia 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. Previous examination of the case

114. The World Confederation of Labour (WCL) submitted allegations of numerous violations of the right to organize and the right to strike and of other trade union rights and civil liberties which have occurred since democratic elections were held in Cambodia. The WCL has claimed that the country's first trade union organization, the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), which was established in December 1996, has suffered repression by numerous enterprises which have refused to recognize it and has been the target of repressive measures by the State. In addition, the WCL has alleged that, during the strikes that took place at three enterprises (Cambodia Garment Ltd., Gennon Manufacturing and Tack Fat Garment), the Government and the employers employed the security forces on a large scale to suppress the strikes and at peaceful demonstrations by striking workers and that people were injured during these violent acts of repression. It is also alleged that several workers were dismissed following the strikes because of their trade union activities. Finally, the WCL alleged that the Government violated rights guaranteed under Conventions Nos. 87 and 98 by systematically restricting and suppressing the right of workers to organize freely.

115. The Government for its part sent some partial information in explanation of the overall situation in Cambodia with regard to new private enterprises in the clothing industry. The Government acknowledged that there had been abuses with regard to working conditions and stated that measures had been adopted to eliminate these abuses. The Government also stated that a new Labour Code had been officially promulgated in March 1997 and that the competent Minister had been charged with the urgent task of implementing it. However, the Government also pointed out that there was lack of experience and practice in this area and that the labour officials were unable to keep up with the rapid economic development and the growth in the workers' movement. With regard to the establishment of SLORC, the Government claimed that, since the promulgation of the Labour Code, the union has not complied with provisions regarding registration. As regards the strikes at the three enterprises, the Government maintained that SLORC's organization of these strikes and demonstrations did not comply with the law and that acts of violence had been committed at the instigation of the union. Finally, the Government pointed out that the Cambodian authorities had not violated the rights guaranteed under Conventions Nos. 87 and 98 and that they respected the right of citizens to form trade unions without prior authorization. In this regard, the Government explained that, since the new Labour Code had not yet been officially promulgated at the time of the events which gave rise to the complaint, the staff delegates had been recognized as the sole legitimate representatives of the workers.

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

B. The Government's new reply

117. In its communications of 2 December 1997 and 7 May 1998, the Government states first that, following the Committee's recommendations, the Labour Inspectorate on 18 March 1998 wrote to SLORC asking the union to deposit its rules for the purpose of registration. According to the Government, the President of SLORC herself collected the letter from the Labour Inspectorate.

118. Secondly, the Government states that the Ministry of Social Affairs, Labour and War Veterans (MASTAC) recently published and implemented a ministerial order concerning procedures for registering and publishing collective agreements and monitoring their implementation. It states that to date a number of works unions and staff delegates have already conducted collective negotiations and concluded collective agreements with employers, with or without the help of labour inspectorate staff. In this regard, the Government states that SLORC cannot enter into collective talks until it is registered. However, the Government also explains that it has no objection to the employer or the Clothing Manufacturers' Association of Cambodia agreeing to talks with SLORC before it is registered, on condition that any collective agreement that might result from such talks should not be enforceable with regard to the other (registered) trade unions. Lastly, the Government states that, to date, 39 works unions in different sectors and one trade union have been registered by MASTAC.

119. With regard to the right to strike, the Government states that the procedures for exercising that right are set out in Chapter XIII of the new Labour Code, and that it has always recognized the right to strike but cannot allow unlawful strikes. In this regard, the Government states that most of the strikes carried out by workers in the clothing factories were carried out without due regard to the procedures stipulated in sections 320 and 324 of the Labour Code, and adds that the strikes carried out by SLORC contravened section 331 of the Labour Code in that they were not peaceful.

120. With regard to measures taken to deprive trade union leaders of their liberty because of their trade union activities, the Government explains that, in order to prevent any recurrences of such cases, it would like the trade unions to obtain the prior consent of company management before engaging in trade union activities during working hours.

121. With regard to the dismissals of workers, the Government refers primarily to its first reply concerning the settlement of the disputes involving two workers at the Gennon Manufacturing factory and 16 workers at the Tack Fat Garment factory. Two other workers, one at the Golden Time factory, the other at Winner Garment, have lodged complaints. The Government explains that in the process of settling these disputes, the complaint of the first worker was regarded as invalid because the complainant had been absent from the conciliation meeting without a valid reason. The second worker received 50 dollars from the employer as compensation for being dismissed. With regard to the dismissal of 13 workers at the Tack Fat Garment factory, the Government states that investigations produced no evidence that the dismissals had been carried out for anti-union motives. On the contrary, the employer had provided documentary evidence that the dismissals had not been for anti-union reasons, and the Government therefore settled these disputes through conciliation. As for the dismissal of three trade union leaders at the clothing factory of SAMHAN Fabrics Co. Ltd., the Government states that two of the workers were dismissed for engaging in trade union activities during working hours without the employer's consent, for slandering management and for taking unauthorized leave, while the third worker was dismissed for failure to comply with disciplinary rules and striking his section chief. The three workers lodged their complaint with the Labour Inspectorate and claimed to have been dismissed by their employer for anti-union reasons. The Government states that, in the absence of adequate evidence of any anti-union motives for these dismissals, it settled the disputes through conciliation. Following conciliation, the employer refused to reinstate the workers but agreed to pay compensation to two of the workers concerned.

122. With regard to the violations of fundamental human rights, in particular trade union rights, the Government states that new measures have been taken to remedy the errors of the past, including the following: the establishment of an inter-ministerial commission to deal with strikes and demonstrations, the commission's permanent secretariat being established within MASTAC; increasing the number of labour inspectors and their resources; increasing the number of inspections in clothing factories; passing a series of ministerial orders to improve implementation of the Labour Code; introducing more severe penalties against employers who break the law, including, where appropriate, suspending exports of their products; and holding regular seminars, including some financed by the ILO, with a view to training the social partners and allowing an exchange of opinions on all matters relating to the rights and interests of workers, trade union activities and conciliation in labour disputes.

C. The Committee's conclusions

123. The Committee recalls that this case concerns allegations of violations of the right freely to establish trade unions and the right to strike and collective bargaining, dismissals of trade unionists and pressure on and threats against them. The Committee also recalls that the alleged acts took place during a transitional period when new labour legislation was about to be adopted but did not come into force until several months after the events which gave rise to the complaint.

124. With regard to recognition of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee recalls that the union was established before the promulgation of the Labour Code. The Government had originally stated that since the promulgation of the Labour Code, the union had failed to implement provisions regarding the registration of trade union rules. However, the Government explains that in March 1998, the Labour Inspectorate wrote to SLORC asking it to deposit its rules with a view to registration and that the President of the union herself collected the letter. The Committee urges the Government to indicate whether or not the union, which was formed almost two years ago when it deposited its rules with the competent authority, has in fact been registered.

125. With regard to infringements of collective bargaining rights, the Committee previously requested the Government to take the necessary measures to allow the trade unions in general to promote and defend workers' interests through collective negotiations and, specifically, to allow SLORC to negotiate working conditions in the clothing industry with the employers. In the light of the Government's new reply, the Committee notes that the Government has recently published and implemented a ministerial order concerning procedures for the registration and publication of trade union rules and for monitoring their implementation. In this regard, the Committee notes that, to date, a number of unions at the enterprise level and workers' representatives have already conducted collective negotiations and concluded collective agreements with the employers. At the same time, the Committee requests the Government to indicate whether negotiations have taken place between SLORC and the employers in the clothing manufacturing sector.

126. As regards the right to strike, the Committee takes note of the provisions of the new Labour Code which guarantee the right to strike and set out implementation procedures. The Committee notes the Government's statements that most of the strikes by clothing factory workers were carried out in contravention of procedures stipulated in the Labour Code, in particular section 324 regarding prior notification. However, the Committee notes that these strikes were started before the promulgation of the new Labour Code and that, consequently, the Government could not cite non-compliance with particular provisions of the Labour Code as grounds for declaring the strikes unlawful. The Committee can only recall once again that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests and requests the Government in this respect to make all efforts to respect the exercise of this right in the future. [See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 474.]

127. With regard to the dismissals of workers, the Committee had requested the Government to investigate the dismissals at the Tack Fat Garment factory in order to ascertain whether or not there had been anti-union motives for them. The Committee notes that the Government in its reply maintains that investigations carried out by the competent minister produced no evidence that workers were dismissed for anti-union motives. Despite this conclusion, the Committee notes that the Government attempted a conciliation. Following the conciliation process, the employer refused to reinstate the workers concerned. While noting the Government's explanations of the reasons for the dismissals, the Committee recalls that, according to the complainant organization, the reasons given for the dismissals were spurious, the real reason being the workers' strike action. The Committee once again wishes to stress that no one should be penalized for carrying out a legitimate strike and 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, op. cit., paras. 590 and 740.] In this case, the Committee requests the Government to review the situation of the dismissed workers at the Tack Fat Garment factory within the framework of expeditious, inexpensive and impartial procedures aimed at presenting acts of anti-union discrimination and, in the event that the dismissals are found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in their jobs of the workers in question.

128. As concerns the dismissal of two workers at the Golden Time and Winner Garment factories and the subsequent resolution of these cases, the Committee would like to obtain more specific information on the manner in which these cases were dealt with.

129. With regard to the dismissal of three trade union leaders at the factory of SAMHAN Fabrics Co. Ltd., the Committee notes the Government's explanations regarding the reasons for the dismissals. Once again, the Government maintains that, after having carried out the investigation, it had no sufficient evidence that the dismissals were of an anti-union nature and it therefore settled the disputes through conciliation. The Committee notes that following this conciliation, only two trade union leaders were granted compensation. The Committee recalls, first, that with regard to the reasons for dismissal, the activities of trade union officials should be examined in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action. In addition, the Committee stresses that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter, except for serious misconduct. Finally, the Committee again stresses 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, op. cit., paras. 707, 727 and 731.] The Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Such protection against acts of anti-union discrimination may thus take various forms adapted to national legislation and practice, provided that they prevent or effectively redress anti-union discrimination, and allow union representatives to be reinstated in their posts and continue to hold their trade union office. The Committee therefore emphasizes the necessity of providing expeditious, inexpensive and impartial means of preventing acts of anti-union discrimination or reducing them as quickly as possible. [See 1994 General Survey on freedom of association and collective bargaining, paras. 214 and 216.] In this respect, the Committee requests the Government to consider adopting measures to reinforce protection against anti-union discrimination and to review the case of the three trade union leaders dismissed from SAMHAN Fabrics Co. Ltd., within the framework of the above-mentioned procedures and, in the event that these dismissals are found to be related to the exercise of legitimate trade union activities to obtain the reinstatement in their jobs of the trade union leaders in question.

130. Moreover, the Committee notes with concern the declaration of the Government according to which it indicates that it would like the trade unions to obtain prior consent of company management before engaging in trade union activities during working hours. In this regard , the Committee recalls that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, Paragraph 10, subparagraph 1, of the Workers' Representatives Recommendation, 1971 (No. 143), provides that workers' representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions. Subparagraph 2 of Paragraph 10 also specifies that, while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. [See Digest, op. cit., para. 952.]

131. With regard to the physical assaults and ill-treatment suffered by the workers, the Committee notes the statements of the Government according to which specific measures have been adopted to rectify the abuses committed in the past, including increasing labour inspectorate staff and their resources and increasing the frequency of inspections carried out in clothing factories, the promulgation of a series of ministerial orders aimed at improving implementation of the Labour Code, and the introduction of more severe penalties against employers who violate workers' fundamental rights. In this regard, the Committee fervently hopes that all these measures will be reflected in practice by greater respect for fundamental human rights with a view to guaranteeing the necessary conditions in which workers are able to exercise freely their basic rights and particularly their trade union rights.

The Committee's recommendations

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

Case No. 1969

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

Complaint against the Government of Cameroon
presented by
the Cameroon Workers' Trade Union Confederation (CSTC)

Allegations: Interference by the government authorities in the
free functioning of workers' organizations

133. In communications dated 25 May and 15 July 1998, the Cameroon Workers' Trade Union Confederation (CSTC) submitted a complaint against the Government of Cameroon alleging violations of freedom of association.

134. A rival faction of the CSTC also sent information relating to the complaint in a communication dated 14 July 1998.

135. The Government sent its observations in a communication dated 21 August 1998.

136. Cameroon 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

137. In its communication dated 25 May 1998, the CSTC refers to internal disputes within the organization, and in particular to the existence of two executive committees. The CSTC alleges that a member of its rival faction lodged a request with the public authorities for the invalidation of the work of the CSTC's December 1997 statutory congress. The CSTC states that following this request the registrar of trade unions allegedly suspended the decisions made by the congress and asked that the former leaders be reinstated.

138. The CSTC also alleges that it has suffered discrimination at the hands of the public authorities on a number of occasions, and refers to their refusal to publish its press releases in the state media, their refusal to air a report on the work of the statutory congress on national television, and numerous cases of police arrest. The complainant organization states that the Minister of Employment, Labour and Social Insurance published two press releases entirely suspending all activities of the CSTC. In addition, it notes that on 1 May 1998 only the leaders of the rival confederation, the Union of Free Trade Unions of Cameroon (USLC), were authorized to speak on behalf of the workers. Lastly, the CSTC considers the problems arising from the interference of the public authorities to be equivalent to a suspension of this confederation by administrative authority and that the only purpose behind it is to promote the introduction of the rival trade union confederation set up by the public authorities.

139. In its communication dated 15 July 1998, the CSTC alleges that a demonstration planned to commemorate the 50th anniversary of Convention No. 87 was prohibited by the sub-prefect of the town of Yaoundé (third district) on the instructions of the Minister of Employment, Labour and Social Insurance. Furthermore, the CSTC notes that the same Minister, taking advantage of the internal disputes within the CSTC, allegedly persuaded the National Assembly to pass a law establishing a minimum service in the public transport sector without consulting the social partners.

140. In a communication dated 14 July 1998, the CSTC's rival faction also refers to the internal disputes within this confederation and considers that the complaint under consideration is inadmissible as the other faction does not have authority to act in the name of the CSTC.

B. The Government's reply

141. In its communication dated 21 August 1998, the Government, referring to the internal divisions within the CSTC, firstly raises a procedural plea of inadmissibility of the CSTC's complaint as it considers that neither of the two factions has authority to act fully on behalf of the CSTC.

142. As regards the allegations concerning the request made to the registrar of trade unions to invalidate the work of the December 1997 congress, the Government states that no action was taken with regard to this request and that, moreover, the registrar of trade unions is not part of the government authorities and that any proceedings he may initiate are in no way binding on the Government. Furthermore, the Government states that through the intermediary of the Minister of Employment, Labour and Social Insurance it initiated mediation meetings with the officers of the two factions, but that these failed because of the radical positions of the two sides. The Government states that these meetings were held on 12 and 20 January and on 18 February 1998 and that numerous anomalies and irregularities in the statutes that had been freely adopted by the CSTC were brought to the attention of the participants. Lastly, the Government states that the minutes of these meetings were sent to the ILO Regional Office for Africa with a covering letter clearly indicating the Government's intention to avoid interfering in any way in the settlement of this internal dispute, which is entirely the responsibility of the members of the CSTC, and explaining that it is unable to recognize two parallel executive committees at the head of the same trade union confederation.

C. The Committee's conclusions

143. The Committee observes that this case relates to allegations of interference by the public authorities in the internal affairs of a trade union confederation, to the prohibition of trade union demonstrations and to the lack of consultation of workers' organizations regarding the implementation of legislation to introduce a minimum service in the public transport sector. The Committee notes that several of the allegations relate to a conflict within a trade union organization.

144. First of all, the Committee recalls that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the Government did not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. Also, when internal disputes arise in a trade union organization they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 965 and 971.]

145. While the Committee has no competence to examine the merits of disputes within the various tendencies of a trade union, it notes however the Government's mediation efforts in this connection and, as it has done in the past, invites the Government to persevere with its efforts, in consultation with the organizations concerned, to put in place as soon as possible impartial procedures to enable the workers concerned freely to choose their representatives. [See Digest, op. cit., para. 969.]

146. Concerning the allegations that the registrar of trade unions, following a request from the rival faction, suspended the decisions taken during the CSTC congress held in December 1997, the Committee notes the Government's statement that no action was taken with regard to this request. As for the allegations that the complainant organization suffered a number of discriminatory measures, such as the refusal to publish its press releases in the state media, the impossibility of speaking on behalf of the workers on 1 May 1998 and the publication by the Ministry of Employment of press releases suspending all CSTC activities in order to promote the introduction of the rival trade union confederation established by the public authorities, the Committee observes that the Government confines itself to explaining that it is unable to recognize two parallel executive committees at the head of the same trade union confederation. The Committee recalls that on a number of occasions it has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations, including, for example: pressure exerted on workers by means of public statements made by the authorities; unequal distribution of subsidies among unions or the granting to one union, rather than to the others, of premises for holding its meetings or carrying on its activities; refusal to recognize the leaders of certain organizations in the performance of their legitimate activities. Discrimination by such methods, or by others, may be an informal way of influencing the trade union membership of workers. They are, therefore, sometimes difficult to prove. The fact, nevertheless, remains that any discrimination of this kind jeopardizes the right of workers set out in Convention No. 87, Article 2, to establish and join organizations of their own choosing. The Committee therefore insists on the fact that the government authorities should refrain from any discrimination between trade union organizations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities. [See Digest, op. cit., paras. 306-307.] In the present case, the Committee requests the Government to refrain from any interference whatsoever in the internal affairs of the CSTC.

147. In respect of the allegations concerning the numerous cases of arrest by the police, the Committee notes that the complainant does not provide any precision in respect of the names of the individuals arrested or the circumstances surrounding these arrests. Nevertheless, the Committee recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. [See Digest, op. cit., para. 77.] The Committee requests the Government to ensure that the police abstain from such arrests in the future.

148. As regards the allegation that the Government prohibited the holding of a demonstration planned to commemorate the 50th anniversary of Convention No. 87, the Committee recalls that the right to organize public meetings constitutes an important aspect of trade union rights. [See Digest, op. cit., para. 133.] In the case in point, the Committee considers that a demonstration to commemorate the 50th anniversary of Convention No. 87 falls within the exercise of trade union rights and regrets the fact that the demonstration could not be held. It asks the Government to respect demonstrations of a purely trade union nature and to ensure that they can be held in the future.

149. As regards the allegation that the Minister of Labour passed through the National Assembly a law introducing a minimum service in the public transport sector without consulting the social partners. the Committee draws the attention of the Government to the importance of prior consultation of employers' and workers' organizations before the adoption of any legislation in the field of labour law. The Committee deems it essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers. [See Digest, op. cit., paras. 930-931.] The Committee therefore requests the Government to endeavour to hold the appropriate consultations prior to the introduction of any legislation affecting workers' interests, including in respect of current legislation.

The Committee's recommendations

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

151. The Committee examined this case at its June 1998 meeting and presented an interim report to the Governing Body [see 310th Report, paras. 185-242, adopted by the Governing Body at its 272nd Session (June 1998)].

152. The Government sent further observations in a communication dated 22 September 1998.

153. 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. Previous examination of the case

154. During its previous consideration of this case concerning legislation dealing with compulsory interest arbitration in specific areas of the public service, the Committee examined in particular Schedule Q to the Savings and Restructuring Act, 1996 (Bill 26); the Public Sector Dispute Resolution Act, 1997 (Schedule A to the Public Sector Transition Stability Act, 1997) (Bill 136); and the Social Contract Act, 1993 (Bill 48). The complainants alleged that the legislation and 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 in contravention of 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).

155. The Committee made the following recommendations [see 310th Report, para. 242]:

B. The Government's reply

156. In its communication of 22 September 1998, the Government states with respect to the application in practice and the outcome of Bill 26 and Bill 136 criteria, that most of the awards in the mandatory interest arbitration regime have dealt with the period preceding the coming into force of these Bills. A total of 50 awards have been released under the Bills (eight in the fire services sector, 14 in the police sector and 28 in the health care sector). The Government notes that the average wage increase awarded in these cases is 1.09 per cent. It recalls that the Government's intention is that the outcomes will mirror as closely as possible those in sectors entitled to exercise the right to strike. It notes, however, that it is too early to determine conclusively whether this goal has been achieved, but it is expected that this will be the result over the medium to long term.

157. With regard to the Ontario Labour Relations Board (OLRB) appointment process and the independence of the Board, the Government states that it recognizes the importance of the impartiality of public appointees and expresses its commitment to ensuring the continued credibility and neutrality of public tribunals and agencies. The Government goes on to describe the general appointment procedure for the OLRB. In general, Board vice-chairperson candidates are identified through consultations within the labour relations community, based on their qualifications, competence, impartiality and credibility. The Minister of Labour, in consultation with the chairperson of the Board, recommends the appointment of vice-chairpersons to the Premier. The Lieutenant Governor in Council appoints the vice-chairpersons through an Order in Council approved by Cabinet. The term for which Board members are appointed is at the discretion of the Lieutenant Governor, although a three-year term is commonplace. Concerning the revocation of the appointments of three of the Board vice-chairpersons, the Government indicates that this was the subject of a recent court challenge, which has been settled. The Government asks that these revocations be viewed in context, namely as part of an unprecedented downsizing of the Government and its agencies. These revocations were the result of significant budget reductions at the Ministry of Labour.

158. The Government asserts that the Acting Deputy Minister of Labour in the Province of Ontario has met on several occasions with representatives of the Ontario Labour Relations Board Appointments Sub-Committee of the Canadian Bar Association Labour Law Executive, who have presented recommendations aimed at facilitating an impartial appointment process. As part of the Government's ongoing review of agencies, the Public Appointments Secretariat has been directed to undertake a review of the public appointments process for chairpersons and members of regulatory/adjudicative agencies to ensure it meets the business needs of the sector. Recommendations for a public appointments policy based upon this review are expected to be released next year.

159. Concerning the complaint filed by SEIU against Mr. Johnson, the Government informs the Committee that the case was withdrawn in May 1998 and that no further legal proceedings in this matter are expected.

160. On the issue of the appointment of arbitrators where the parties cannot agree on an arbitrator, the Government states that this is currently the subject of litigation before the domestic courts. As a result, it is the view of the Government that it would be inappropriate for it to offer public comment at this time, and asks that the Committee defer its consideration of this particular issue until the courts have rendered a decision. The Government notes that interest arbitrators and arbitration boards are usually agreed upon by the parties, and it is only where the parties fail to agree that a third party has the authority to make appointments. The Government states that an increasing number of parties have been choosing interest arbitrators by mutual agreement.

161. Concerning the Committee's recommendation that consultations in good faith be undertaken regarding any changes in the bargaining structure, the Government expresses its support for consultation "wherever appropriate". It goes on to state, however, that the Government needs to be able to judge and determine, as circumstances vary and taking into account the context of each issue, the appropriate timing and scope of consultations; for instance, from time to time the speedy passage of legislation is imperative. In such cases, the Government remarks, consultation cannot be as broad as the Government and affected parties may desire.

162. Finally, concerning the overall industrial relations climate in Ontario which had been commented upon by the Committee, the Government states that there are bound to be different points of view between the Government and organized labour as to what constitutes a proper balance in the labour relations framework. Despite these different perspectives, the Government asserts that the outcomes that have been achieved in the past few years are indicative of harmonious industrial relations in the province. The Government cites two examples in support of its contention: first, 95 per cent of collective agreement negotiations have been settled without a strike or lockout; secondly, Bill 136 issues, such as the determination of bargaining unit structure after an amalgamation of two or more broader public sector employers, are being dealt with expeditiously by the Board and in a way that is promoting negotiated settlements.

C. The Committee's conclusions

163. The Committee notes that the complaint involves allegations that the legislation concerning compulsory interest arbitration in specific areas of the public service and 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 in contravention of freedom of association standards and principles.

164. The Committee notes the Government's statement that it is too early to determine conclusively whether the outcomes of arbitration under Bills 26 and 136 replicate those in sectors entitled to exercise the right to strike but that it is expected that this will be the result over the medium to long term. The Committee recalls its previous conclusions in this case that the compatibility with freedom of association and collective bargaining principles of the criteria to be taken into consideration by the arbitrators pursuant to the Bills depends on their application in practice. The Committee requests the Government to provide further information concerning the arbitration outcomes, and to forward copies of the relevant arbitration awards. It also repeats its request to the complainants to submit further information in this regard.

165. The Committee notes that while the Government expresses its support for consultation "wherever appropriate", it does not define what it considers "appropriate", and states that consultation cannot always be as broad as the parties may desire. In particular, the Committee notes that the Government refers to the need in certain circumstances for the speedy passage of legislation. While taking note of this statement, the Committee again recalls the importance of adequate consultation where a government seeks to alter a bargaining structure in which it acts actually or indirectly as the employer, including with respect to compulsory arbitration, so that 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. Noting the importance of changes in the bargaining structure, including the arbitration process, to the bargaining parties, the Committee urges the Government to ensure in future that consultations in good faith are undertaken regarding any changes to the bargaining structure, in such circumstances that the parties have all the information necessary to make informed proposals and decisions and the implementation of the legislation ultimately adopted is facilitated.

166. Concerning the allegation of interference with the independence of the OLRB, the Committee, while noting the Government's statement as to the importance of the impartiality of the Board, again expresses its concern as to the perceived effects on the independence of the members of the OLRB due to external pressures brought to bear on them according to the complainants. The Committee considers that if there was in fact governmental interference, this would be a violation of freedom of association principles. The Committee further notes that the Government has provided a general description of the appointment procedure. In this regard, the Committee requests the Government to provide more specific information on the actual consultation process that is undertaken. With respect to the allegations concerning the removal of eight OLRB vice-chairpersons and the chairperson, the Committee notes that the Government in its reply makes reference to the revocation of the appointments of only three of the Board vice-chairpersons. The Committee requests the Government to provide specific information concerning all the cases referred to in the complaint, and also to inform the Committee of the basis in law and in practice upon which appointments can be revoked or not renewed. The Committee notes the Government's indication that a review of the appointment procedure is being undertaken, and the complainant's statement on the loss of confidence of the trade unions and the other residual negative effects on industrial relations that have occurred from recent governmental action impinging on labour relations. Consequently, the Committee urges the Government to make trade unions and employers' organizations an integral part of the review process since it is dealing with an area of particular importance to them.

167. Concerning the Committee's request for information regarding the process of choosing arbitrators for appointment where the parties cannot agree on an arbitrator, the Committee notes the Government's request that consideration of this issue be deferred since it is presently the subject of litigation. The Committee requests the Government to forward a copy of the decision of the court in this matter as soon as it is rendered.

168. With respect to the overall industrial relations climate in Ontario, the Committee, while noting the Government's statement that there are bound to be different points of view as to what constitutes a balance in the labour relations framework and that outcomes that have been achieved recently are indicative of harmonious industrial relations, recalls its observations during the previous examination of this case, concerning the factors impinging on the industrial relations environment:

The Committee is obliged to repeat its conclusion that such restrictions can, in the long term, prove harmful to and destabilize labour relations. The Committee also notes that, by definition, harmonious industrial relations cannot be said to exist where one of the parties has lost confidence in the system. The Committee regrets that the Government has not responded to its recommendation to consult fully with the trade unions and employers' organizations to determine how to strive to promote confidence in arbitration, which is essential for harmonious industrial relations, and urges it to do so in the near future. It requests the Government to keep it informed in this regard.

The Committee's recommendations

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

Case No. 1951

Interim report

Complaint against the Government of Canada (Ontario)
presented by
-- the Canadian Labour Congress (CLC) and
-- the Ontario Secondary School Teachers' Federation (OSSTF)

Allegations: interference with collective bargaining; denial
of the right to organize, to bargain collectively and to strike
of principals and vice-principals; lack of protection against
anti-union discrimination and employer interference

170. The Canadian Labour Congress (CLC) and the Ontario Secondary School Teachers' Federation (OSSTF) presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 2 February 1998. The complainants forwarded additional information in a communication dated 4 March 1998.

171. In response to the allegations, in a communication dated 22 September 1998, the federal Government transmitted the reply of the Government of the Province of Ontario.

172. 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

173. The complaint concerns legislation governing the education sector in Ontario, namely the Education Quality Improvement Act, 1997 (Bill 160), which substantially amends the Education Act. In their communication of 4 March 1998, the complainants allege that the legislation, combined with the restrictive interpretation that has been given by the Supreme Court of Canada to the constitutional right to freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, 1982), violates the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); the Labour Relations (Public Service) Convention, 1978 (No. 151); and the Collective Bargaining Convention, 1981 (No. 154). A copy of the legislation and explanatory material was annexed to the complaint. The complainants express concern in particular regarding the decreased scope of collective bargaining due to the legislation, the exclusion of principals and vice-principals from bargaining units, trade unions and from protection against anti-union discrimination and employer interference, and the lack of consultation in the preparation of the legislation.

174. As background, the complainants state that the Ontario Secondary School Teachers' Federation (OSSTF) was founded in 1919, and today represents approximately 34,000 public secondary school teachers, 1,550 of whom are principals and vice-principals. The OSSTF is one of five affiliates of the Ontario Teachers' Federation (OTF).

Scope of collective bargaining

175. The complainants allege that Bill 160, which received Royal Assent on 1 December 1997, changes collective bargaining structures and in particular takes out of the collective bargaining process the determination of many aspects of teachers' working conditions by allowing the Government to unilaterally define many of these conditions. Previously, in the absence of legislated limits on collective bargaining, teachers have had the right to negotiate collective agreements with their employing school boards. Pursuant to the School Boards and Teachers Collective Negotiations Act, 1975, local school boards were required to negotiate with branch affiliates representing teachers in relation to any term or condition of employment put forward. This was done in the context of school boards having the right to raise monies locally through taxing residential and commercial property, if required. Thus, terms and conditions affecting teachers' employment have been freely negotiated between the parties directly responsible for the delivery of education for over 20 years. The complainants state that Bill 160 effectively removes those essential rights, since it is now the Minister of Education and Training who decides who can be a teacher, how long during the day teachers will have to work in the classroom or teach pupils, how long they will have to work in the year, what their duties will be, and many other variables. No centralized regulation may be overridden by a locally negotiated collective agreement. Thus, according to the complainants, large portions of existing collective agreements could be rendered meaningless, as district school boards may strip benefits which took years to negotiate and achieve.

176. The complainants point to the major areas of ministerial power which in their view undermine free collective bargaining. Firstly, section 171(2) and (3) of the Education Act are amended by section 82 of Bill 160 to allow a district school board to require teachers to work during some or all of the five working days preceding the start of the school year, and to authorize principals to make determinations respecting the work to be done by teachers during those days. The complainants remark that what work will be performed and how it will be performed will become an issue at the negotiating table, which will place stress upon the collegial approach that most principals have attempted to maintain given their inclusion in the bargaining unit.

177. In addition, section 11(7) of the Education Act is amended by section 7(4) of Bill 160 to permit the Minister of Education and Training to make regulations:

178. The complainants submit that it is foreseeable that the Minister will utilize these regulatory powers to control every aspect of the teaching day, including the teachers' duties, and that the Minister will now have the complete power to rectify the effects of any legal strike or lockout that may occur. The complainants further submit that the centralization of control is compounded by section 81 of Bill 160, adding section 170.1 to the Education Act, which creates direct ministerial interference in matters which have been collectively bargained for decades. Section 170.1 requires that every district school board shall comply with the class sizes they set down, unless the Minister permits them to exceed those sizes. In addition, section 170.2 has been added requiring every district school board to comply with minimum amounts of time that teachers must be assigned to teach classes or subjects to pupils during the instructional programme on a school day. In the light of these provisions, the complainants conclude that the teachers' workload, and every single minute of their working day, will be controlled through regulations or legislation, leaving little if anything to negotiate; the resulting impact upon staffing provisions will be potentially devastating. Further, the complainants state that when combined with the power of district school boards to control the number of positions of responsibility, one can foresee the Minister adopting regulations impinging upon any negotiated "administrative time" which may have been bargained over the years.

179. The complainants assert that Bill 160 prevents compliance with existing or future collective agreements in the education sector; as a result, the Government is discouraging collective bargaining, destabilizing the labour relations climate by discouraging workers from having an interest in unions, and excluding important aspects of conditions of work from the field of collective bargaining.

Exclusion of principals and vice-principals

180. Another aspect of Bill 160 raised by the complainants is the provisions aimed at removing principals and vice-principals from existing teachers' trade unions, and further preventing them from forming associations in any meaningful sense by excluding them from the trade union protections of the province's collective bargaining regime. Since 1919, principals and vice-principals have been active and vital members of OSSTF. From its inception, they have held positions on the OSSTF Executive, and have participated in all aspects of its activities, including collective bargaining functions, professional development, and lobbying governments and school boards to improve education and learning conditions. Since 1964, principals and vice-principals have coordinated their common activities within OSSTF through the Ontario Secondary School Principals' Council (OSSPC), which is an internal division of OSSTF. Since the formalization of collective bargaining in the education sector in 1975, principals and vice-principals have been statutorily required to be members of OTF, its affiliates and branch affiliates, pursuant to the Teaching Profession Act and the School Boards and Teachers' Collective Negotiations Act.

181. The complainants state that the membership of principals and vice-principals in OSSTF has not created a conflict with their role as school administrators. Principal and vice-principal members of OSSTF maintain that it is still the most appropriate representative of their interests. The collegial relationship between principals and vice-principals and the classroom teachers has been fundamental in maintaining and developing a healthy learning environment for students.

182. When Bill 160 was introduced for first reading on 22 September 1997, it did not include provisions barring principals and vice-principals from membership in the Ontario Teachers' Federation (OTF) or its affiliate unions, including OSSTF, nor were they to be removed from the proposed bargaining units. Amendments to exclude principals and vice-principals were unilaterally announced on 30 October 1997 and tabled on 5 November 1997. The decision of the Government to remove principals and vice-principals from their existing bargaining units, is, submits the complainants, largely a response to the principals' and vice-principals' participation in the teachers' protest against Bill 160.

183. The complainants point to a number of provisions of Bill 160 which together remove principals and vice-principals from their respective bargaining units and deny them access to collective bargaining, namely sections 122, 127, 151, 167 and 180. These were the result of government amendments to Bill 160 added between the second and third reading of the Bill. Pursuant to these amendments

184. The complainants note that until Bill 160, the Ontario Government had seen fit to include principals and vice-principals in teachers' unions. The Government has claimed in the course of a court challenge to Bill 160 and in other public statements that principals and vice-principals are supervisory or managerial employees. However, according to the complainants, all evidence produced in court in support of this claim has been purely speculative. In addition, the Ontario Labour Relations Board has repeatedly held that the functions of principals and vice-principals would not require their exclusion from the teachers' bargaining units under the Ontario Labour Relations Act, which excludes from entitlement to union membership a person "who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations". According to a 1986 Ontario Labour Relations Board (OLRB) decision, a copy of which was appended to the complaint, a principal "has no independent authority to hire, fire, or discipline contract teachers", and is not in a "managerial" function. The Board states in addition that the assignment of teachers, principals and vice-principals to the same collective bargaining organization has not, on the evidence before them, lead to "any calamitous collective bargaining results" or any "collective bargaining friction". [Ontario Public School Teachers' Federation v. The Board of Education for the City of Windsor, 5 March 1986.] In the same case, reference is made to an earlier OLRB decision where it was stated that "Peer review or evaluation is not uncommon in a professional setting, and is not, in itself, a managerial function ... The adversarial model, conflict of interest rationale, and 'two-sides approach' to collective bargaining is not easily applied to a group of professionals -- as the Legislature undoubtedly recognized when it determined that principals and vice-principals should be included in the same bargaining units as their fellow teachers." The complainants state that domestic legal determinations have been consistent in recognizing that principals and vice-principals do not truly represent the interests of school boards (employers), do not have policy-making or managerial functions, and do not have duties of a highly confidential nature to justify excluding them from teachers' trade unions.

185. Pursuant to Bill 160, the Labour Relations Act governs collective bargaining between teachers and school boards, displacing the School Boards and Teachers Collective Negotiations Act. However, as a result of Bill 160, principals and vice-principals will not have access to the machinery and procedures of the Labour Relations Act to facilitate collective bargaining. They are denied the protection of the statutory prohibitions against discrimination or reprisals for engaging in trade union activities, and against employer interference. Trade unions can no longer be certified as bargaining agents for these workers. Employers are no longer under any legal obligation to bargain with trade unions or associations representing principals or vice-principals. Furthermore, principals and vice-principals are denied the right to strike and may be subject to penalties or dismissal should they strike, since they are governed by common law rather than the Labour Relations Act.

186. The complainants submit that the exclusion of principals and vice-principals from trade union membership and collective bargaining was the result of principals and vice-principals taking part in a protest in opposition to Bill 160. The protest began on 27 October 1997, with the participation of OTF, all its affiliates, and members of the public. All of the 126,000 teachers in the province refused to teach in protest, and principals and vice-principal members of OSSTF supported the protest, with a majority of them withdrawing their services to protest alongside the teachers. On 30 October 1997, while the protest was still taking place, the Government unilaterally announced a series of amendments to the Bill, which are noted above, affecting principals and vice-principals. The complainants state that members of OSSTF and OSSPC strongly believe that the removal of principals and vice-principals from OSSTF and bargaining units was "a vindictive and arbitrary reaction to their exercise of the right of political protest". The current Minister of Education has stated, according to the complainants, that the amendments were made in response to the participation of the large number of principals and vice-principals taking part in the protest. The complainants submit that the exclusion was a deliberate government policy that harms the efficiency of teachers' unions and was aimed at punishing principals and vice-principals for participating in the political protest.

187. The complainants contend that practically, the exclusion of principals and vice-principals from the bargaining unit will force many of them to retire, since they would not want to return to their teaching positions or to bump teachers with less seniority out of the bargaining unit. Many principals and vice-principals may also not want the alternative, which is to continue in their positions in the absence of union representation.

188. Another result flowing from the legislation, in the view of the complainants, is that OSSTF and other teachers' unions will be weakened since they will be deprived of a substantial proportion of their present membership. As a result of Bill 160, OSSTF's membership has been reduced by 4 per cent, resulting in proportional financial consequences. The Ontario Public School Teachers' Federation, another OTF affiliate, represented approximately 13,000 public school teachers, 2,000 of whom were principals and vice-principals; therefore, as a result of Bill 160, its membership has been reduced by 15 per cent. In addition, the experience and knowledge of principals and vice-principals holding elected position and taking part in OSSTF councils and committees has been lost, thus further weakening the teachers' trade unions. Principals and vice-principals have also had a key role in professional development and improving educational and learning conditions, through such actions as lobbying school boards and governments and promoting teaching excellence.

Prior consultation

189. The complainants allege that the Government failed to consult adequately those concerned before initiating a rapid reform of the entire educational structure, including the collective bargaining structure for teachers. It was presented to teachers' unions largely as a fait accompli near the end of the reform process and was developed with little meaningful consultation. The Government had expressed its intention to enact the legislation before negotiations started, and the negotiations lasted only a few weeks. The little amount of consultation that did occur did not include input from teachers' unions, or principals' and vice-principals' organizations, regarding the late amendments to the Bill to exclude principals and vice-principals from collective bargaining structures.

190. The complainants state that prior to the introduction of Bill 160, some discussions took place between OTF and the Government regarding issues of concern to the affiliates, including the government proposal to remove principals and vice-principals from affiliate membership and the bargaining units. OTF and its affiliates made some submissions and attended some meetings with the Minster of Education on the general nature of Bill 160 prior to its introduction and also after first reading. When it was introduced for first reading on 22 September 1997, Bill 160 did not bar principals and vice-principals from membership in the OTF, OSSTF or other affiliates, nor were they removed from bargaining units. On 6 October 1997, a time allocation order for Bill 160 severely restricted debate concerning its contents. Bill 160 received second reading on 7 October 1997. The provisions of Bill 160 remained a concern to OTF and its affiliates, which continued to demonstrate their opposition in submissions and during meetings with the Minister of Education and Training. The complainants assert that at no time during the meetings, and specifically during negotiations held between the Government and the teachers between 24-26 October 1997, did the Government intimate that the removal of principals and vice-principals from OTF and affiliates was being considered. Since the Bill's introduction, there was very little consultation on the central issue of exclusion of principals and vice-principals.

191. The complainants continue that on 30 October 1997, the Government announced a series of amendments to Bill 160 excluding principals and vice-principals, which were tabled in the Legislature on 5 November 1997. After these amendments were introduced and passed, OTF and its affiliates were denied the opportunity to make submissions to the Committee of the Legislature reviewing the Bill. Moreover, at no time were principals and vice-principals consulted, as a distinct group, on the changes to Bill 160 directly and profoundly affecting their interests.

The Canadian Charter of Rights and Freedoms

192. The complainants state that, while the teachers' unions are seeking to enforce their freedom of association rights through the domestic courts, the Supreme Court of Canada's restrictive interpretation provides them with little protection. In a number of cases, starting in 1987, the Supreme Court of Canada has scrutinized legislated restrictions placed upon trade union activities, examining whether or not the restrictions violate the constitutional guarantee of freedom of association as set out in section 2(d) of the Canadian Charter of Rights and Freedoms ("the Charter"). The complainants refer to a number of Supreme Court of Canada cases interpreting section 2(d) of the Charter, copies of which have been included with the complaint. The complainants refer in particular to the court's findings that the guarantee of freedom of association does not include the right to strike or the right to bargain collectively [Reference Re Public Service Employee Relations Act (Alberta) (1987); Public Service Alliance of Canada v. The Queen in the Right of Canada (1987); Government of Saskatchewan v. Retail, Wholesale & Department Store Union (1987); Professional Institute of the Public Service of Canada v. Commissioner of the Northwest Territories (1990)].

193. The complainants conclude on this point that the Canadian Constitution does not guarantee the rights mandated by ILO standards and principles of freedom of association, in particular the right to strike and to bargain collectively; therefore, the failure of the Government to amend the Constitution, in particular the Charter of Rights and Freedoms, violates Canada's international obligations. In addition, with respect to the potential concern that the complainants have not exhausted the domestic remedies since a Charter challenge to the Bill is pending, the complainants submit that this should not inhibit the Committee given the limitations of internal legal procedures in the light of the Supreme Court of Canada's restrictive interpretation of section 2(d) of the Charter.

General industrial relations climate

194. The complainants point to the numerous cases that have come before the Committee in recent years, in particular those concerning public sector workers. They also assert that since 1975, the federal and provincial governments of Canada have frequently resorted to legislation imposing restrictions on free collective bargaining and banning strikes, in particular in the public sector. With reference to Ontario in particular, the complainants state that since the Progressive Conservative Party came to power in 1995, it has made a deliberate and exceptionally vigorous assault on freedom of association in Ontario. Attention is drawn to the recent case from Ontario concerning legislation denying certain professional employees access to collective bargaining and the right to strike and to protection against anti-union discrimination and employer interference [308th Report, Case No. 1900 (Canada/Ontario), paras. 139-194]. The complainants also underline the view expressed by the Committee that repeated recourse to restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Furthermore, this may have a detrimental effect on workers' interest in unionization, since members and potential members could consider it useless to join an organization the main objective of which is to represent its members in collective bargaining, if the results of such bargaining are constantly cancelled by law [Case No. 1607 (Canada/Newfoundland), 284th Report, para. 589; Case No. 1616 (Canada), 284th Report, para. 637].

195. In order to obtain accurate information to make a more thorough and detailed examination to facilitate finding solutions to the problems that have arisen, and to more adequately address the exceptional and worsening problem in Ontario and the lack of compliance with the Committee's recommendations, the complainants request the Committee to take one of the following exceptional steps:

B. The Government's reply

Scope of collective bargaining

196. In its communication of 22 September 1998, the Government states with respect to the allegation that Bill 160 restricts the scope of collective bargaining in violation of freedom of association standards and principles, that school boards are a special kind of employer, having a duty to operate schools for approximately 2 million pupils in Ontario who have the statutory right to attend school. The operation of schools as a workplace must, in the view of the Government, be consistent with ensuring the delivery of quality education to pupils and responsible fiscal management of public money.

197. The Government notes that Bill 160 eliminated the authority of school boards to establish rates for local education property taxes -- a power that had previously been delegated to them. These rates are now prescribed by the province. Before Bill 160 came into force, school boards could supplement their revenue by taxing their local supporters above the provincially prescribed rate. The Government states that the ability of the school board to have recourse to the local taxpayer for revenue that exceeds what is provided by the provincial Government is not a collective bargaining right. Thus the collective bargaining rights of teachers have not been affected by the new funding model established by Bill 160. Rather, what is affected is their ability to convince school trustees to go to the local taxpayer in order to finance benefits and working conditions.

198. The Government states that on 22 July 1998, the Ontario Court (General Division) ruled that Roman Catholic school boards have a constitutional right to tax separate school supporters in their jurisdiction because this is a right that existed for denominational schools in Ontario at the time of Canadian confederation in 1867. This constitutional right does not apply to public schools and is unrelated to collective bargaining rights, which did not exist in 1867. The same court upheld the constitutionality of the power of the provincial Government to prescribe property tax rates. The decision is being appealed to the Ontario Court of Appeal, where it is scheduled to be heard in November 1998. In the interim, the trial court has suspended its declaration for 17 months.

199. The Government contends that, contrary to the claims of the complainants, the labour relations reforms resulting from Bill 160 actually enhanced the collective bargaining rights and protections for teachers. The amendments gave teachers and their unions certain rights that they did not have before, including the following:

200. According to the Government, following extensive consultations with parents, teachers and school board officials, the Education Act was amended by Bill 160 to prescribe limits on the average size of the elementary and secondary school classes. The limits benefit both pupils and teachers in the view of the Government. While the union may view the "class size" issue as a workload issue, it actually exemplifies Ontario's efforts to ensure quality education for pupils. The fact that the averages are "school board-wide" ensures that boards and teachers continue to be able to discuss how to staff classes at specific grade levels. In addition, they may negotiate for class sizes that fall under the limits.

201. Another result of the amendments, states the Government, is that school boards are required to assign their teachers to a minimum number of minutes of instruction over a period of five days. This is calculated as an average number of minutes assigned to all the classroom teachers employed by the school board, and is based on their assignments over the entire school year. Therefore, there is flexibility and scope for teachers' unions and boards to negotiate how to implement this provision. The Government further indicates that the regulatory power to prescribe the school year is not new, and the total number of days that teachers work during the school year was not increased. The result of the amendments was to require that more days during the school year be used for classroom instruction rather than examinations or teacher professional activity days. School boards may also require teachers to work up to five days preceding the commencement of the school year, in keeping with current practice.

202. On this issue, the Government concludes that school boards and teachers' unions continue to be able to negotiate salary, benefits, leaves of absence, pupil-teacher ratios, class size (within the above-noted limits), other workload provisions, positions of additional responsibility (eg. department heads), grievances, paid leave for union activities, "just cause" protection for discipline and dismissal, seniority, surplus and recall procedures, etc. The Government stresses that the complainants' assertion that "every single minute" of a teacher's working day is controlled through regulation, is unfounded.

Exclusion of principals and vice-principals

203. In its reply, the Government notes that the exclusion of principals and vice-principals from teachers' bargaining units and from being represented by a union under the Labour Relations Act, is the subject of a court application by OSSTF and other teachers' unions which are claiming that the exclusion is a violation of the Charter. On 17 March 1998, the application was dismissed, no Charter violation being found. This decision is currently under appeal to the Ontario Court of Appeal. The Government requests that, since the issue of exclusion of principals and vice-principals remains to be dealt with in the domestic forum, this aspect of the complaint not be considered until the domestic remedies are exhausted.

204. In examining the substance of this issue, the Government requests the Committee to take a number of factors into account. The Government indicates firstly that the Education Act was amended by Bill 160, and most of the changes came into force on 1 January 1998. Bill 160 also repealed the School Boards and Teachers' Collective Negotiations Act which was the collective bargaining legislation that specifically applied to school boards and teachers (other than occasional teachers). The Labour Relations Act now applies to collective bargaining between teachers (including occasional teachers) and school boards, as it applies to the vast majority of unionized employees in Ontario.

205. The Government indicates that during the consultations it undertook regarding education reforms, many principals indicated that their bargaining unit membership was in conflict with their management duties and responsibilities. The exclusion of principals and vice-principals from teachers' bargaining units and from being represented by a trade union under the Labour Relations Act was, therefore, necessary. The exclusion of managerial employees from collective bargaining is a fundamental principle of labour relations throughout Canada. A principal's managerial duties, which may be assigned to a vice-principal, include the following:

In addition, the Government states that principals are in charge of the organization and management of their school. In practice, principals often mediate disputes between parents and teachers; it is important for the parents to perceive that the principal can be objective in resolving conflicts with teachers.

206. The Government contests the complainants' allegation that the exclusion of principals and vice-principals was a response to the teachers' strike. The motivation was not to seek revenge for participating in the province-wide strike that took place for two weeks in the autumn of 1997; rather, the purpose was to resolve the conflict between the managerial roles and union member roles of principals and vice-principals. The Government states that "their participation in the unlawful strike only illustrated the need to clarify their managerial role".

207. The Government claims that the right of principals and vice-principals to freedom of association has not been infringed. Since 1 January 1998, many of them have joined one of the voluntary associations of principals and vice-principals established in response to Bill 160. Although these associations are not trade unions, and a school board is not required to negotiate a collective agreement with them, they are actively involved in discussions with school boards concerning terms and conditions of employment of their members. These provincial associations are also recognized as key education stakeholders by the Ontario Ministry of Education and Training. Principals and vice-principals, explains the Government, may also become voluntary members of OTF and participate in non-collective bargaining initiatives of its affiliates.

Prior consultation

208. Concerning the allegation that the legislative reforms were not preceded by adequate consultation, the Government states that the labour relations reforms for teachers were part of a larger education reform initiative undertaken by the Government of Ontario to improve the quality of education for pupils. Education stakeholders and the general public were able to express their views about the reforms both by direct communication with the Government and through the legislative process. The Government emphasizes that the legislative process in Ontario is public and democratic.

209. The Government states that the teachers' unions were clear and unequivocal about their views on the legislation. A Standing Committee of the Legislature, consisting of members of all the political parties, held hearings to receive public input across the province. Teachers' unions made submissions at these hearings. In addition, teachers' unions held meetings with senior representatives of the Government of Ontario to discuss many different aspects of the proposed legislative changes. The Government did respond to many of the trade unions' concerns by making motions to amend Bill 160 prior to its third reading in the Legislature.

210. While the changes affecting principals and vice-principals were introduced as amendments to the Bill, the Government asserts that the issue of whether or not principals and vice-principals should be in teachers' unions has been a topic of debate and the subject of commission studies and other government reports since teachers were given the statutory right to bargain in 1975.

The Canadian Charter of Rights and Freedoms

211. The Government acknowledges that the Supreme Court of Canada has interpreted section 2(d) of the Charter to exclude the right to strike and the right to bargain collectively, and expresses its agreement with this interpretation. The Supreme Court of Canada, notes the Government, considers these rights to be the creation of legislation and not fundamental freedoms. Ontario's Labour Relations Act does provide for collective bargaining and strikes; as a result, Ontario teachers can collectively bargain and strike.

212. The Government states that there is nothing in Conventions Nos. 87, 98, 151 or 154 requiring such rights to be spelled out in the Charter. The Government goes on to state that "it should be noted that there is no specific reference to a 'right to strike' in any of these ILO Conventions. Therefore, the complainants have requested protection from Canada which do not accord with its international obligations."

General industrial relations climate

213. The Government states that it is not accurate to portray Bill 160 as the latest link in a series of anti-labour legislation. The purpose of Bill 160 is the improvement of Ontario's education system and it does not prevent teachers from collectively bargaining or from striking. Furthermore, the majority of the labour cases to which the complainants refer, involved, according to the Government, objections to public sector wage constraints which were spread across every province in Canada.

C. The Committee's conclusions

214. The Committee notes that the allegations of violations of freedom of association arise from the recently adopted Education Quality Improvement Act, 1997 (Bill 160), which amends the Education Act. According to the complainants, this piece of legislation significantly alters labour relations in the education sector. In particular, Bill 160 excludes certain matters from collective bargaining that had previously been subject to negotiation. The Bill also excludes principals and vice-principals from bargaining units for the purpose of collective bargaining, and excludes them from the rights and protections of the Ontario Labour Relations Act, 1995. The complainants allege that these legislative changes were introduced in the absence of adequate consultation with those concerned. The complaint also raises the interpretation by the Supreme Court of Canada of the constitutional right to freedom of association guaranteed by the Canadian Charter of Rights and Freedoms, 1982, as a violation of freedom of association standards and principles, since the right to strike and to bargain collectively have not been accepted as part of freedom of association.

215. The Committee notes that Bill 160 received first reading on 22 September 1997, second reading on 7 October 1997 and third reading on 1 December 1997. It received Royal Assent on 8 December 1997, and most of the provisions came into force on 1 January 1998.

Scope of collective bargaining

216. The Committee notes that, pursuant to Bill 160, collective bargaining in the education sector is no longer governed by the School Boards and Teachers' Collective Negotiations Act, 1975, which is repealed by section 178 of the Bill. According to section 8 of the School Boards and Teachers' Collective Negotiations Act, "negotiations shall be carried out in respect of any term or condition of employment put forward by either party". The complainants point to a number of provisions of Bill 160 which restrict the ability of the parties to negotiate concerning certain issues, given that pursuant to section 277.13 of the Bill, the Act and regulations made under it prevail over provisions of a collective agreement in case of conflict. The Committee notes the complainants' contention that as a result of the legislative restrictions, provisions of existing collective agreements could be rendered meaningless.

217. The Committee notes that section 7(4) of Bill 160 endows the Minister of Education and Training with the power to make regulations:

The section goes on to state that the school calendar shall not provide for more than ten examination days or more than four professional activity days.

218. Concern is also raised with respect to section 81 of Bill 160 which places upper limits on the average size of classes. These maximums may be exceeded with the permission of the Minister. Section 81 also addresses the amount of instruction time to be provided by classroom teachers, which is set out as a minimum average for each period of five instructional days during the school year. Section 82 is also highlighted by the complainants, which states that "A board may require teachers to work during some or all of the five working days preceding the start of the school year ... A board may authorize the principal of a school to make determinations respecting the work to be done by teachers of the school during the working days referred to ...".

219. The Committee notes the Government's view that the limit on the average size of school classes will benefit both pupils and teachers and is part of an effort to ensure quality education for pupils. With respect to the minimum number of minutes of instruction, the Government states that there is scope for negotiation regarding how to implement the provision. Regarding the power to prescribe the school year and the total number of days that teachers work, the Committee notes that according to the Government, this is not new; the result of the amendments is to require more days for classroom instruction rather than examinations or teacher professional activity days. The Government also stresses that negotiations can still take place on a number of issues including salary and benefits.

220. The Committee recalls 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 of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 782]. The Committee has previously emphasized the importance of promoting collective bargaining in the education sector [see Digest, op. cit., para. 804; 310th Report, Case No. 1928 (Canada/Manitoba), para. 175]. Regarding the subject-matter of collective bargaining, the Committee has accepted that matters that are essentially or primarily concerned with the management and operation of business can be regarded as outside the scope of negotiation. 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]. With respect to class size, the Committee has acknowledged 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 [see 310th Report, Case No. 1928 (Canada/Manitoba), para. 175]. 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' unions concerned are fully consulted in this regard. With respect to the other matters that have been excluded from the collective bargaining process, the Committee considers that some may have aspects of broad educational policy; however, those policy decisions may have important consequences on conditions of employment, which should be the subject of free collective bargaining. The Committee, therefore, requests the Government to enable free collective bargaining to take place on the consequences on conditions of employment of decisions on educational policy. The Committee requests to be kept informed of developments in this regard.

Exclusion of principals and vice-principals

221. The Committee notes that, prior to the enactment of Bill 160, principals and vice-principals were members of the same unions as teachers, and were part of the same bargaining unit as teachers for the purposes of collective bargaining. Bill 160 has excluded principals and vice-principals from the statutory collective bargaining process. In addition, while teachers are now covered by the provisions of the Labour Relations Act, principals and vice-principals are not. The relevant provisions of Bill 160 include sections 122, 127, 151, 167 and 180.

222. The Committee notes that the Government justifies the exclusion of principals and vice-principals on the basis that they are managerial employees. The Government states that these workers are able to join voluntary associations of principals and vice-principals. The Committee recalls that by virtue of the principles of freedom of association, all workers -- with the possible exception of the police and armed forces -- should have the right to establish and join organizations of their own choosing, and that freedom of association should be guaranteed without discrimination [see Convention No. 87, Article 2; Digest, op. cit., para. 205]. The Committee recalls, however, that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade union as other workers, providing two conditions are met: first, that such workers have the right to form their own associations to defend their interests; secondly, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers by depriving them of a substantial portion of their present or potential membership. The expression "manager" or "supervisor" should be limited to cover only those persons who genuinely represent the interests of employers [see Digest, op. cit., paras. 231-232].

223. The Committee notes that the issue of the exclusion of principals and vice-principals from teachers' bargaining units and the impossibility for them to join teachers' unions under the Labour Relations Act, is the subject of a court application by OSSTF and other teachers' unions which is currently under appeal to the Ontario Court of Appeal. The Committee requests the Government to inform it of the outcome of the appeal and to forward a copy of the court's decision as soon as it is rendered.

224. The Committee notes further that principals and vice-principals are excluded from the collective bargaining machinery of Bill 160, as well as from the Labour Relations Act, due to section 277.2 of the Education Act, added by section 122 of Bill 160, and section 151 of Bill 160. Concerning the exclusion of these workers from the collective bargaining machinery established by virtue of Bill 160 and the Labour Relations Act, the Committee notes that the Government acknowledges that the school boards are no longer under any legal obligation to bargain with principals and vice-principals or their associations concerning terms and conditions of employment. Pursuant to section 127 of Bill 160, the Lieutenant Governor in Council is empowered to make regulations governing terms and conditions of employment for principals and vice-principals; according to section 277.13, any such regulations prevail over provisions of a collective agreement. In addition, due to their exclusion from the Labour Relations Act, principals and vice-principals are denied protection against anti-union discrimination, including dismissal, and employer interference in union activities.

225. The Committee recalls its statement in a similar case concerning the exclusion of particular workers from the Ontario Labour Relations Act:

[308th Report, Case No. 1900 (Canada/Ontario), para. 186].

226. Regarding protection against anti-union discrimination and employer interference, the Committee recalls the importance it has attached to the need for specific provisions prohibiting acts of interference by employers against workers and their organizations, and prohibiting discrimination on the basis of trade union membership or activities, and for clear procedures and dissuasive sanctions [see Digest, op. cit., para. 737 et. seq.]. The Committee turns again to its conclusions in the recent Canada/Ontario case concerning the Labour Relations Act, where it stated as follows: "The Committee therefore considers that the absence of any statutory machinery for the promotion of collective bargaining and the lack of specific protective measures against anti-union discrimination and employer interference in trade union activities constitutes an impediment to one of the principal objectives of the guarantee of freedom of association, that is the forming of independent organizations capable of concluding collective agreements." [see Case No. 1900 (Canada/Ontario), 308th Report, para. 187]. The Committee, therefore, requests the Government to take the necessary measures to ensure that principals and vice-principals have access to machinery and procedures that facilitate collective bargaining and to ensure that these workers enjoy effective protection from anti-union discrimination and employer interference. The Committee further requests the Government to keep it informed in this regard.

227. Noting that the exclusion of principals and vice-principals also means that they are not covered by the provisions of the Labour Relations Act granting and protecting strike action, the Committee recalls that it has always recognized the right to strike as a legitimate and essential means of workers and their organizations to promote and defend their economic interests [see Digest, op. cit., paras 474-475]. However, the right to strike may be restricted or prohibited in limited cases. While the Committee has found that the education sector does not constitute an essential service [see Digest, op. cit., para. 545], it has held that principals and vice-principals can have their right to strike restricted or even prohibited [see 277th Report, Case No. 1528 (Germany), para. 289]. The Committee, therefore, considers that this aspect of the case does not call for further examination.

Prior consultation

228. Noting that Bill 160 significantly modifies labour relations in the education sector, the Committee recalls that where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, 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 310th Report, Case No. 1928 (Canada/Manitoba), para. 183; 310th Report, Case No. 1943 (Canada/Ontario), para. 230].

229. The Committee notes that while some consultations did take place before the introduction of Bill 160, there was no consultation on the amendments concerning the exclusion of principals and vice-principals once the government motion was moved. These provisions were included late in the legislative process, and came as a surprise to the workers' organizations concerned. In the view of the Committee, such significant modifications should not have been made in the absence of full and considered consultation. 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 Canadian Charter of Rights and Freedoms

230. The Committee notes that the Canadian Charter of Rights and Freedoms, which forms part of the Constitution Act, 1982, provides that "Everyone has the following fundamental freedoms: ... freedom of association" (section 2(d)). The complainants and the Government agree that this constitutional right to freedom of association has been defined by the Supreme Court of Canada as not encompassing the right to strike or the right to bargain collectively.

231. The Committee considers that the right to strike and to bargain collectively are integral components of the principles of freedom of association, and that the constitutional guarantee of freedom of association pursuant to the Canadian Charter of Rights and Freedoms does not give expression to these rights. However, while the standards and principles of freedom of association require the effective acknowledgement and protection of the right to strike and to bargain collectively, constitutional protection of these rights is not imperative. If expression is given to these rights in other pieces of legislation, a violation of freedom of association will not be found.

General industrial relations climate

232. The Committee notes with concern that this case is one of a series concerning legislative reforms in Ontario, and in each of the cases, the Committee has pointed to incompatibilities with freedom of association standards and principles. The Committee recalls its conclusions in Case No. 1943 (Canada/ Ontario):

[310th Report, para. 241].

233. The Committee requests the Government to consult fully with trade unions and employers' organizations to determine how to strive to promote confidence in the labour relations system of Ontario. In order to facilitate finding solutions to the labour relations difficulties, the Committee suggests to the Government to consider having recourse to the assistance of the International Labour Office, and to keep it informed in this regard.

The Committee's recommendations

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

Case No. 1942

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

Complaint against the Government of China/Hong Kong Special Administrative Region
presented by
the Hong Kong Confederation of Trade Unions (HKCTU)

Allegations: Adoption of legislation contrary to
freedom of association

235. In a communication of 1 November 1997, the Hong Kong Confederation of Trade Unions (HKCTU) submitted a complaint of violations of freedom of association against the Government of China/Hong Kong Special Administrative Region. The International Confederation of Free Trade Unions (ICFTU) associated itself with this complaint in a communication dated 9 December 1997.

236. The Government supplied its observations on the case in a communication dated 26 May 1998.

237. In a communication dated 6 June 1997, the Government of China stated that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), would continue to apply with modifications and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), would continue to apply without modifications to the Hong Kong Special Administrative Region with effect from 1 July 1997.

A. The complainant's allegations

238. In its complaint, the Hong Kong Confederation of Trade Unions (HKCTU) contends that the Government of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China violated Conventions Nos. 87 and 98 through the repeal and amendment of three labour Ordinances which were passed by the Hong Kong Legislative Council on 26 June 1997 and which provided for the right to organize and to bargain collectively. During the first week of their operation, the HKSAR Government moved to halt the implementation of these newly passed Ordinances. The newly appointed Provisional Legislative Council passed the government suspension bills on 18 July 1997. On 30 September 1997, the Executive Council of Hong Kong put forward a new amendment bill, which repealed two of the three Ordinances and amended the third. The new amendment bill was passed by the Provisional Legislative Council on 29 October 1997.

239. The HKCTU then proceeds to explain the background to its complaint. On 1 July 1997, the sovereignty of Hong Kong was handed over from the United Kingdom to the People's Republic of China which set up the Government of the Hong Kong Special Administrative Region (HKSAR). On the same day, the Chinese Government also dissolved the Hong Kong Legislative Council and replaced it with a Provisional Legislative Council; the latter body comprised members who were elected by a 400-member body, whose members were in turn selected by the Preparatory Committee set up by the Chinese Government before the handover of sovereignty.

240. The HKCTU points out that the Hong Kong Government passed the Bill of Rights in 1992, article 18 of which protects the freedom of association enjoyed by Hong Kong citizens. Moreover, at the 85th Session of the International Labour Conference, the ILO's Director-General received on 10 June 1997 notifications from the Government of China concerning the application or continued application to Hong Kong after 1 July 1997 of international labour Conventions. These notifications were registered as of 1 July 1997, and ensured the continued application to Hong Kong from that date of all the Conventions which were applicable to Hong Kong until that date under declarations made by the Government of the United Kingdom, except three which were specifically designed for non-metropolitan territories. In addition, the Chinese Government promulgated the Basic Law of the HKSAR in July 1997 (a copy of which is attached to the complaint). Article 39 of the Basic Law stipulates that:

241. The HKCTU goes on to say that on 26 June 1997 the Hong Kong Legislative Council passed three Ordinances, which provided for the rights guaranteed under Conventions Nos. 87 and 98. The three Ordinances were: Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997; Employment (Amendment) (No. 4) Ordinance, 1997; and Trade Union (Amendment) (No. 2) Ordinance, 1997 (copies of the three are attached to the complaint). However, on 9 July 1997, the HKSAR Government put forward a bill, Legislative Provisions (Suspension of Operation) Ordinance No. 126 of 1997 (referred to as the 1997 Suspension Bill hitherto) (copy attached to the complaint), to suspend the implementation of the above-mentioned three Ordinances until 31 October 1997. The 1997 Suspension Bill was passed by the newly established Provisional Legislative Council on 15 July 1997. The HKSAR Government, in moving the 1997 Suspension Bill, announced that a review of the above-mentioned three Ordinances would be conducted, mainly with the Labour Advisory Board, and a deliberation on them would be made by 31 October 1997. After a series of meetings held with the Labour Advisory Board, the HKSAR Executive Council, on 30 September 1997, resolved to repeal the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997; the Employment (Amendment) (No. 4) Ordinance, 1997; and amended the Trade Union (Amendment) (No. 2) Ordinance, 1997. The HKSAR Government then gazetted the Employment and Labour Relations (Miscellaneous Amendments) Bill, 1997 (referred to as the 1997 Labour Relations Bill) on 9 October. The Provisional Legislative Council approved this Bill at its third reading on 29 October 1997. Under the 1997 Labour Relations Bill, the right of trade unions to engage employers in collective bargaining would be removed, the use of union funds for political purposes banned, and the appointment of union officials restricted. (The HKCTU encloses a table summarizing these Ordinances which is reproduced as Appendix I.)

242. More specifically, the HKCTU explains that the Trade Union (Amendment) (No. 2) Ordinance, 1997 (referred to as the 1997 Trade Union Ordinance), provided for the removal of various restrictions on trade union rights in Hong Kong, imposed by the Trade Union Ordinance of 1989. The HKCTU contends that the decision of the Provisional Legislative Council to pass the 1997 Labour Relations Bill to amend the 1997 Trade Union Ordinance violates Convention No. 87 in the following manner. First of all, regarding the qualification of trade union officers, clauses 17(2) and 57 of the 1989 Trade Union Ordinance had required that all trade union officers be engaged in the "trade, industry, occupation" of their employing trade unions or trade union federations, unless with the written approval of the Trade Union Registrar. The 1997 Trade Union Ordinance removed the restriction on occupations and trades. The 1997 Labour Relations Bill, while lifting the restriction on the appointment of officers in a federation, re-establishes the restriction at the level of a first-level union, thereby violating Article 3 of Convention No. 87. Secondly, with regard to the use of union funds, clause 34 of the 1989 Trade Union Ordinance had banned the use of union funds for any political purposes, "directly or indirectly", "within or without Hong Kong". Clause 33(1) also had required prior approval by the Governor for other usage of funds. Clause 33(1)(j) had banned financial contributions to overseas bodies without the prior approval of the Governor. The 1997 Trade Union Ordinance removed all restrictions on the utilization of funds and replaced prior approval by the Government with authorizations by the union's general meetings. The 1997 Labour Relations Bill reverts the restrictions stipulated under the 1989 Trade Union Ordinance, hence violating Convention No. 87.

243. The HKCTU further alleges that the adoption of the 1997 Labour Relations Bill by the HKSAR Government also constitutes a violation of Convention No. 98 for several reasons. With regard to Article 1 of the Convention, the HKCTU points out that for decades unionists had consistently failed to secure legal protection against discriminatory dismissal. Employees in Hong Kong were protected against anti-union discrimination by Part IVA of the Employment Ordinance (Cap. 57) which provided for criminal sanctions with a maximum fine of HK$100,000. For example, the Hong Kong Government failed in its attempt to press charges of criminal sanctions against the discriminatory dismissal of two employees by the New Bright Plastics Factory in 1988. Similar failure was repeated in 1994 with a dismissed unionist at Wellcome Co. Ltd. As a result of the extended industrial dispute and strikes with Cathay Pacific Airways, the Government undertook a review of industrial relations in Hong Kong in 1993. The end report prepared by the Education and Manpower Branch in October 1993 (Review of Industrial Relations System in Hong Kong, 1993) stated that:

244. Four years after the review, the Government adopted the Employment (Amendment) (No. 3) Bill, 1997 which was passed by the Legislative Council on 17 June 1997; section 32A(1)(c)(i) provided for remedies by compensation and for reinstatement upon consent of both employers and employees for employees who were dismissed as a result of their participation in union activities. However, the HKCTU believed that the remedies provided under the Amendment Bill were inadequate and hence submitted to the Legislative Council a Private Member Bill, Employment Ordinance Amendment (No. 4) Bill, 1997, which differed from the above-mentioned government bill in two major aspects: it provided protection not only against dismissal but also all other forms of detriment; in addition it provided for automatic reinstatement which would not be conditional upon mutual consent of both employers and employees. The Employment Ordinance Amendment (No. 4) Bill, 1997, was passed by the Legislative Council on 26 June 1997, granting all workers this new protection. Regrettably, the 1997 Labour Relations Bill, which repealed the above Ordinance, deprives workers in Hong Kong of adequate protection in scope and in remedy, and workers would only be protected against dismissal with compensation and without remedy of automatic reinstatement. In so doing, the HKSAR Government violated Article 1 of Convention No. 98.

245. The HKCTU further alleges that the repeal by the HKSAR Government of the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997, represents a blatant violation of its obligations under Article 4 of Convention No. 98. The Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997, provided for a procedure of recognition for all registered trade unions to be the bargaining representatives if the unions were able to organize more than 15 per cent of the workforce and show support, as certified by an independent arbitrator, of over half of the respective workforce. The Bill also provided for the recognition of trade unions which organized more than 15 per cent of the workforce in enterprises with a workforce of more than 20 people to be the consultation representative with the management over terms of employment. The HKCTU contends that the HKSAR Government's repeal of this Bill represents an adamant refusal to provide adequate and legal protection for workers' organizations to engage their employers in collective bargaining. The Government's move is a regression, reverting to the previous Government's practice of providing conciliation services by the Labour Department to facilitate negotiation between employers and employees (often individually) rather than workers' organizations (collectively). The repeal also reverts to the old practice of the absence of any procedures for recognition of trade unions as the collective bargaining representative.

246. The HKCTU explains that the Hong Kong Government has never paid any serious efforts to encourage collective bargaining. Other than its refusal to enact appropriate legislation, 22 years after ratifying Convention No. 98, the Hong Kong Government has only produced a one-page publicity pamphlet (1992) in its efforts to "promote" collective bargaining. The Government's active discouragement and refusal to provide legal protection for collective bargaining have resulted in the marginal representation of trade unions in Hong Kong with very few workers covered by collective agreements. At enterprise level, only two companies presently endorse collective agreements. At industry level, there are general wage agreements in a very limited number of industries, such as some construction trades, printing and stevedore; but the agreements reached are not binding and very often not followed by the employers. Furthermore, the Hong Kong Government has consistently tried to argue that it has observed Article 4 of Convention No. 98 by its provision of conciliation service in labour disputes or promotion of consultation with employees by employers. In its paper to the Labour Advisory Board (LAB/LR4/97, under the paragraph on "Voluntary collective bargaining") (copy attached to the complaint), the concept of collective bargaining is interpreted by the Labour Department as:

According to the HKCTU, the Government's promotion of "informal" and "ad hoc" contravenes the main gist of Convention No. 98, which calls for the promotion of collective bargaining. Furthermore, trade unions should play the role of a negotiation partner rather than just an "advisory and supportive role".

247. Moreover, contradicting the requirement of Article 4 of Convention No. 98, the "promotional activities" of the Labour Department are not aimed at collective bargaining:

The HKCTU contends that the Government has failed to address the requirement of Convention No. 98 for employers to negotiate with trade unions or workers' organizations, which is the basis for collective bargaining, but instead has consistently shown preference for "employee involvement" which is individual or optional in nature:

The HKCTU asserts that the Hong Kong Government by its own admission is only keen to promote negotiation between employers and employees and bypasses trade unions in its promotional exercises. Its activities favour individual over collective agreements for two purposes: to weaken or eliminate the role of unions and to reduce employees' terms and conditions of employment.

248. The HKCTU maintains that, judging from over two decades of trade union experience, the only way to promote collective bargaining in Hong Kong is through legislative protection. Hence HKCTU General Secretary and Legislative Councillor Lee Cheuk Yan put forward a Private Member Bill, Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance, which was successfully passed on 26 June 1997 and came into effect on 29 June 1997. However, after the change of sovereignty, the HKSAR Government enacted the 1997 Labour Relations Bill which repealed the above-mentioned Collective Bargaining Bill. The HKCTU asserts that the authorities have consistently argued against setting up machinery for collective bargaining in Hong Kong, in particular during the debate of the above Bills. For example, in the Information Paper for the Panel on Manpower of the Provisional Legislative Council (copy attached to the complaint), submitted by the Education and Manpower Bureau on 30 September 1997, the authorities state their objection to the enactment of legal provisions for collective bargaining. In his intervention during the 26 June 1997 Legislative Council debate on the 1997 Collective Bargaining Bill, the Secretary for Education and Manpower, Mr. Wong Wing-ping, launched a frontal attack on collective bargaining. He stated in particular that:

According to the HKCTU, it is evident that the Government's definition of "harmonious labour relations" hinges upon weak trade union organization and the absence of collective bargaining. Mr. Wong also claimed that collective bargaining would cause conflicts between unions and between members and non-members of trade unions. He argued that the procedure of collective bargaining would hinder the speedy settlement of disputes in contrast to the existing machinery of voluntary negotiation between labour and management. Mr. Wong concluded his address by reiterating that:

The HKCTU contends that as a result of the absence of provisions on collective bargaining, many unions and employees' representatives have suffered from their employers' refusal to negotiate terms of employment or implement negotiation agreements. This has been the bitter experience of numerous major unions in Hong Kong, to name a few, the Hong Kong International Terminal Group Employees' General Union, Hong Kong Telephone Co. Ltd. Staff Association, Kowloon Motor Bus Co. Ltd. Staff Association, which have witnessed the failure of their employers' implementation of terms of employment or even willingness to negotiate these terms. In effect, despite the Government's official ratification of Convention No. 98, collective bargaining rights have not been protected nor provided for in Hong Kong.

249. In conclusion, the HKCTU insists that, for the purpose of full compliance with Conventions Nos. 87 and 98, the HKSAR Government review its newly enacted Employment and Labour Relations (Miscellaneous Amendments) Bill, 1997, and revert its decision to repeal the laws providing for collective bargaining and trade union rights. The immediate implementation of the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance, 1997, the Employment (Amendment) (No. 4) Ordinance, 1997, and the Trade Union (Amendment) (No. 2) Ordinance, 1997, would ensure the effective implementation of Conventions Nos. 87 and 98 in Hong Kong.

B. The Government's reply

250. In its reply dated 26 May 1998, the Government indicates that the three labour-related Ordinances covered by the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997, are: (a) the Employment (Amendment) (No. 4) Ordinance, 1997, on anti-union discrimination in employment which was repealed; (b) the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance on collective bargaining which was repealed; and (c) the Trade Unions (Amendment) (No. 2) Ordinance, 1997, on regulation and control of trade union activities which was amended.

251. The Government points out that these three Ordinances originated from three Members' Bills (legislative proposals introduced by members of the legislature) and were rushed through during the final sitting of the previous Legislative Council of Hong Kong without due public consultation and full and proper scrutiny. They would have not only had long-term effects on the community, but also far-reaching implications on the labour relations system and the economy of Hong Kong. In fact, the hasty passage of these Ordinances had aroused grave concern from all quarters of the Hong Kong community including the local media. A number of newspaper editorials described this as a "highly irresponsible act". It was therefore only prudent and responsible for the HKSAR Government to carefully review these Ordinances and scrutinize properly their impact so as to ascertain whether the provisions were truly in the public interest. The suspension of these Ordinances allowed the HKSAR Government to complete the necessary review. To underline its commitment to completing the review as soon as practicable, the HKSAR Government set the deadline of 31 October 1997 as the expiry date of the suspension period. According to the Government, there is no question of a "roll-back" on labour rights and benefits as a result of the above decision. It has been the Government's long-established policy to progressively improve employees' rights and benefits in a way which is commensurate with the pace of Hong Kong's economic and social developments and which strikes a reasonable balance between the interests of employers and employees. Employees' rights and benefits in Hong Kong have been substantially and continuously improved in recent years.

252. In this particular case, the HKSAR Government carefully scrutinized and thoroughly reviewed all the three labour-related Ordinances in close consultation with the Labour Advisory Board (LAB). The LAB, as a tripartite consultation body, was formed in 1946 to advise the Government on labour matters including the application of international labour standards. Employers and employees are each represented by six representatives. Five employee representatives are freely elected by registered employees' unions by secret ballot at biennial elections and five employer representatives are nominated by five major employer associations. The remaining employer and employee representatives are appointed by the Government. As the most representative and well-respected tripartite consultative body on labour matters in Hong Kong, the LAB has proved to be the cornerstone of Hong Kong's harmonious labour relations. It has an impressive and proven track record and has contributed greatly to improving labour rights and benefits in Hong Kong over the past five decades. The proposals to repeal two and amend one of the three labour-related Ordinances in question were drawn up on the basis of the recommendations of the LAB. As such, it represented a reasonable balance between the interests of employers and employees.

253. Turning to the specific allegation that Article 3 of Convention No. 87 was violated through the enactment of the Employment and Labour Relations (Miscellaneous Amendment) Ordinance, 1997, by retaining the restriction on the occupational background of trade union officers and on trade unions' participation in political activities, the Government recalls that Convention No. 87 was declared applicable with modifications in 1963 which is permitted under article 35 of the ILO Constitution. Hence, the Government has applied Convention No. 87 with modifications which include qualifications of trade union officers and restrictions on the use of union funds for political purposes. The modifications in respect of the occupational background of trade union officers and use of trade union funds are necessary safeguards to ensure the healthy development of trade unions in Hong Kong and to ensure that the role of trade unions are strictly confined to the promotion and protection of the interests of union members.

254. The Government indicates that section 17(2) of the Trade Unions Ordinance (TUO) stipulates that "no person shall, without the consent of the Registrar of Trade Unions, be an officer of a registered trade union unless he is ordinarily resident in Hong Kong and is or has been engaged in the trade concerned". The Registrar has been careful and flexible in exercising this power. During 1991-97, 14 applications under section 17(2) were received from unions. All of them were approved. Furthermore, the TUO only prohibits the use of trade union funds for political purposes rather than imposing a general prohibition on trade unions' participation in political activities. Sections 33A and 33B of the TUO permit the use of union funds for defraying expenses incurred in connection with elections to the District Board, the Urban or Regional Council or the Legislative Council. It is noteworthy that the prohibition on the use of union funds for political purposes was supported by all LAB employee members when the provision was examined by the LAB in the context of the review of the three labour-related Ordinances in August 1997. Feedback from trade unions collected by the Registry of Trade Unions has also revealed that many trade union officers are of the view that local unions should concentrate on promoting workers' rights and benefits rather than becoming politicized in their activities. Finally, with the recent amendments to the TUO under the Employment and Labour Relations (Miscellaneous Amendment) Ordinance, 1997, the previous prohibitions on the formation of cross-industry federations were removed, while the restrictions regarding trade unions' affiliation with their foreign counterparts were relaxed. Trade unions of different industries, trades or occupations may now form federations, and trade unions may become members of organizations of workers and relevant professional organizations in foreign countries without seeking the prior approval from the HKSAR Government.

255. The Government then turns to the allegation that the protection and remedies provided under the Employment (Amendment) (No. 3) Ordinance, 1997, are inadequate and that the repeal of the Employment (Amendment) (No. 4) Ordinance, 1997, particularly the provision regarding automatic reinstatement which would not be conditional upon mutual consent of both employers and employees, has deprived unionists of the right to reinstatement and has hence violated Article 1 of Convention No. 98. The Government points out that Part IVA of the Employment Ordinance provides for protection of workers against acts of anti-union discrimination. Employers and employees are advised of the relevant provisions of the law through training courses, seminars and promotional visits by officers of the Labour Department. The HKSAR Government takes a serious view on all allegations of anti-union discrimination. The policy is to take out prosecution whenever a prima facie case can be established. As regards the two cases cited by the HKCTU involving New Bright Plastics Factory and Wellcome Co. Ltd., prosecutions were indeed taken out in both cases. However, the defendants were acquitted of the charges because the Court was unable to conclude from the evidence available whether the dismissals were by reason of the employees' union membership or participation in union activities or whether they were due to other causes such as poor work performance.

256. With regard to the repeal of the Employment (Amendment) (No. 4) Ordinance, 1997, the Government explains that the provisions of this Ordinance are substantially similar to the provisions for employment protection in respect of unlawful dismissal on grounds of anti-union discrimination under the Employment (Amendment) (No. 3) Ordinance, 1997, which was proposed by the Government and which came into effect on 27 June 1997. The No. 3 Ordinance strengthened the protection of employees against unreasonable termination of employment, unreasonable variation of employment contract and unlawful dismissals. In respect of dismissals on the grounds of union discrimination, the major differences between the two (Amendment) Ordinances lie in the range of remedies. The No. 3 Ordinance provides for reinstatement/re-engagement subject to prior mutual consent between the employer and the employee, termination payments and award of compensation up to a maximum of HK$150,000 while those provided under the No. 4 Ordinance include reinstatement, promotion and other staffing arrangement without such mutual consent, as well as compensation for damages without any maximum limit. Thus, the No. 4 Ordinance was repealed because (a) similar protection was already provided for under the No. 3 Ordinance and (b) the concurrent operation of two sets of provisions providing for similar protection under the same Ordinance, i.e. the Employment Ordinance would create unnecessary confusion amongst employers, employees and the Labour Tribunal. Moreover, the repeal of the No. 4 Ordinance was unanimously agreed upon by all the employer and employee members of the LAB. The Government indicates that it has made a commitment to review the provisions on reinstatement under the No. 3 Ordinance -- the major area of difference between the above two Ordinances -- after it has come into effect for one year. This has the full support of the LAB.

257. With regard to the allegation that the repeal of the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance represents a blatant violation of the Government's obligation under Article 4 of Convention No. 98, the Government states that Article 4 contains two essential elements: action by the public authorities to promote collective bargaining, and the voluntary nature of negotiation, which implies autonomy of the parties. The provision of this Article does recognize that there can be wide variations in the circumstances of different countries and territories. It is clear that while the HKSAR Government should encourage employers and employees to negotiate on a voluntary basis, there is no question of the Convention creating an absolute obligation upon the HKSAR Government to impose collective bargaining by statute. Hence, in accordance with Article 4, the HKSAR Government has already taken measures appropriate to local conditions to encourage and promote negotiation between employers and employees or their respective organizations on a voluntary basis. The Labour Department has always encouraged the formation of consultative machinery at the level of individual enterprises. A recent example of the success of such efforts is the case of an airline company which has successfully negotiated with its staff on relocation arrangements arising from the move of operation from Kai Tak International Airport to the new location at Chek Lap Kok. Efforts have also been made to encourage tripartite dialogue at the industry level. An example is the establishment of the catering trade tripartite group which has helped the trade to improve compliance with the Employment Ordinance and publish a code of labour relations practices for the trade. Where negotiations fail to resolve labour problems between an employer or firm with its employees, the Department has always played an active role as a conciliator to facilitate the parties involved to resolve their dispute speedily and amicably. In the process of negotiation, the parties are encouraged to conclude, where possible, a written agreement on the terms of settlement. Voluntary negotiation, underpinned by the Department's voluntary conciliation service, has served Hong Kong well for the past decades. The state of labour relations in Hong Kong has been remarkably harmonious. The average number of working days lost through labour disputes over the four years from 1994 to 1997 was only 0.44 day per 1,000 wage-earners and salaried employees -- one of the lowest in the world.

258. Furthermore, to encourage and promote voluntary negotiation and effective communication, the Labour Department organizes a wide range of activities such as conferences, seminars, training courses and visits. It also publishes free newsletters, pamphlets and leaflets which, among other things, aim at the promotion of the principles and concepts of voluntary negotiation and the importance of effective communication between employers and employees. For example, in the "Code of Labour Relations Practice" the Department advocates that trade unions have a "legitimate right to secure the best possible terms and conditions for the members" and "management should develop a healthy relationship with unions by consulting and cooperating with properly registered and representative unions". To underline the Government's commitment to promoting voluntary negotiation, a special team of experienced officers has been set up in the Labour Department in April 1998 to strengthen the promotion of voluntary negotiation and better communication between employers and employees.

259. The Government denies that it is only keen to promote negotiation between employers and employees and bypasses trade unions, as alleged in the complaint. The HKSAR Government has always recognized the positive and useful role of trade unions in labour relations. It encourages the involvement of industry unions in tripartite dialogues at the industry level and of enterprise unions (where one exists) in joint negotiations at the enterprise level. In fact, many major labour disputes were successfully resolved through the conciliation efforts of the Labour Department with the active involvement of employees' unions. Some recent notable examples include the sudden closure of Yaohan Department Store and the China Motor Bus dispute in which an industry union and an enterprise union were respectively involved. They both played a useful role in bringing about an amicable settlement of their disputes with management. Finally, the allegation that the Government had "launched a frontal attack on collective bargaining" during the debate over the legislation on collective bargaining is unfounded. In fact, throughout the debate, the Government had made it clear that it fully supported collective bargaining on a voluntary basis and had elaborated only on the reasons why the imposition of collective bargaining by statute was not desirable for Hong Kong.

260. In conclusion, there is no question of the HKSAR Government breaching Conventions Nos. 87 and 98 as a result of the enactment of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997. The Government has applied Convention No. 87 with modifications since 1963 (allowed under the ILO Constitution) and Convention No. 98 in full since 1975. Hence, the decision to repeal two and amend one of the three labour-related Ordinances was in the best overall interests of the community and had taken full account of Hong Kong's socio-economic developments.

C. The Committee's conclusions

261. The Committee notes that the allegations in this case concern the repeal and/or amendment of three labour-related Ordinances by the Government of the Hong Kong Special Administrative Region (HKSAR) through its enactment of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (referred to as the ELRO hereinafter), certain provisions of which are contrary to the requirements of Conventions Nos. 87 and 98. While not denying that the three labour-related Ordinances were in effect repealed and/or amended by the ELRO, the HKSAR Government contends that the latter Ordinance complies fully with these Conventions.

262. With regard to the specific allegation that Article 3 of Convention No. 87 was violated through the enactment of the ELRO by retaining the restriction on the occupational background of trade union officers and on the use of union funds for political purposes, the Government states that since Convention No. 87 was declared applicable with modifications which cover the issues of qualifications of trade union officers and the use of union funds for political purposes, it is justified in applying the Convention which such modifications. At the very outset and in this respect, the Committee would remind the Government that the mandate of the Committee 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] independently of the ratification or non-ratification of these Conventions. The Committee therefore proposes to examine whether the legislation complained of is in conformity with freedom of association principles in keeping with its mandate.

263. Concerning the issue of restrictions on the eligibility of union officials to stand for office, the Committee notes in effect that section 5 of the ELRO amends the Trade Union (Amendment) (No. 2) Ordinance, 1997, by reintroducing the occupational requirement for persons wishing to stand for trade union office. In this respect, the Committee would recall that the determination of conditions of eligibility of union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations [see 309th Report, Case No. 1865 (Republic of Korea), paras. 153 and 160(xi)]. The Committee therefore requests the Government to repeal section 5 of the ELRO restricting union office to persons actually employed in the trade, industry or occupation of the trade union concerned.

264. With regard to alleged government restrictions on the use of union funds, the Committee notes that the 1989 Trade Union Ordinance contained two sets of restrictions which were repealed by the Trade Union (Amendment) (No. 2) Ordinance, 1997, and subsequently reintroduced by the ELRO. Section 8 of the ELRO subjects financial contributions to trade unions or similar organizations abroad as well as the use of union funds for any other purposes than those enumerated in section 33(1) of the Trade Union Ordinance of 1989 to the "approval of the Chief Executive". Section 9 of the ELRO contains a blanket prohibition on the use of union funds for any political purpose. In its reply, the Government confines itself to addressing the latter allegation, indicating that restrictions on the use of union funds for political purposes are necessary safeguards to ensure the healthy development of trade unions in Hong Kong. The Committee has stated on previous occasions that provisions which give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association [see Digest, op. cit., para. 438]. The Committee therefore considers that section 8 of the ELRO which gives the Chief Executive the authority to impose restrictions on the use of union funds is incompatible with the right of workers' organizations to organize their administration without interference by the public authorities; this right includes the autonomy and financial independence of these organizations. It requests the Government to take the necessary steps to repeal section 8. Similarly, with regard to the blanket prohibition established by section 9 on the use of union funds for any political purpose, the Committee would remind the Government that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association provided that trade unions do not engage in political activities in an abusive manner and go beyond their true functions by promoting essentially political interests [see Digest, op. cit., paras. 452 and 454]. The Committee considers that it would be difficult, if not impossible, for unions to engage in political activities in practice in the face of a legislatively imposed ban on the use of union funds for any political purpose. It therefore requests the Government to take steps to repeal section 9 of the ELRO as well.

265. The Committee notes that, according to the complainant, the adoption of the ELRO also constitutes a violation of Convention No. 98 for several reasons. With regard to Article 1 of Convention No. 98, the complainant points out that since the protection and the remedies provided under the Employment (Amendment) (No. 3) Ordinance, 1997, which was proposed by the Government were inadequate, the Employment (Amendment) (No. 4) Ordinance, 1997, which granted workers a better protection against all acts of anti-union discrimination, was subsequently adopted by the Legislative Council; however, the latter Ordinance was repealed by the ELRO. The Government contends that similar protection was provided for under the No. 3 Ordinance and the No. 4 Ordinance and the latter was repealed to avoid confusion amongst employers, employees and the Labour Tribunal, brought about by the concurrent operation of two sets of provisions providing for similar protection under the Employment Ordinance.

266. The Committee, for its part, notes first of all that while section 32A(1)(c)(i) of the No. 3 Ordinance provides for protection against dismissal of workers on grounds of union activities, section 21D of Ordinance No. 4 provided for protection against dismissal as well as all other forms of detriment. The Committee would remind the Government that protection against acts of anti-union discrimination should cover not only dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker [see Digest, op. cit., para. 695]. Similarly, the Committee notes that section 32(N)(3) of Ordinance No. 3 stipulates that the court or Labour Tribunal may make an order for reinstatement only if both the employer and employee concerned agree thereto, whereas section 21H(2)(c) of Ordinance No. 4 authorized the Labour Tribunal to make an order for reinstatement even without such prior mutual consent. In the Committee's view, 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, op. cit., para. 707]. The Committee believes that the above scenario is likely to ensue under the terms set out in section 32(N)(3) of Ordinance No. 3 since it is difficult to envisage that the requirement of prior mutual consent contained therein will be easily forthcoming if the true reason for dismissal is based on anti-union motives. This is partly acknowledged by the Government itself in its "Review of Industrial Relations System in Hong Kong" published in October 1993 in which it is stated, inter alia, that:

267. In this respect, the Committee takes due note of the Government's statement that it is committed to reviewing the provisions on reinstatement under the No. 3 Ordinance, which commitment has the full support of the Labour Advisory Board (LAB). In the light of the principles enunciated in the preceding paragraph and in order to bring its legislation into complete conformity with the principles on freedom of association relating to protection against acts of anti-union discrimination, the Committee requests the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, with a view to ensuring that provision is made in the legislation for: (i) protection against all acts of anti-union discrimination; and (ii) the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent of both the employer and the employee concerned.

268. The Committee notes that the last series of allegations centre around the repeal by the Government of the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance of 1997 which, according to the complainant, provided adequate and legal protection for workers' organizations to engage their employers in collective bargaining. This repeal allegedly represents a regression to the old practice of the absence of any procedures for recognition of trade unions as the collective bargaining representative. The Committee notes in effect that section 12 of the above Ordinance defined a representative trade union to be one which was able to organize more than 15 per cent of the workforce and show support, as certified by an independent arbitrator, of over half the respective workforce. Moreover, section 15 of the same Ordinance laid down procedures for the recognition by employers of representative trade unions for purposes of collective bargaining. The Committee notes the Government's statement that it fully supports collective bargaining on a voluntary basis but that Convention No. 98 does not create an obligation to impose collective bargaining by statute. As a result, the above Ordinance was repealed and a number of measures appropriate to local conditions were taken to encourage and promote negotiation between employers and employees or their respective organizations on a voluntary basis including the provision of the Labour Department's conciliation service. Furthermore, the Government emphasizes that in order to encourage and promote voluntary negotiation, the Labour Department organizes a wide range of activities such as conferences, seminars, training courses and visits.

269. The Committee would recall that it has always taken the view that nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining [see Digest, op. cit., para. 846]. On the other hand, it has also taken the view that employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them [Digest, op. cit., para. 821]. In this regard, the Committee notes the complainant's assertion (to which the Government does not reply) that the absence of legal protection for collective bargaining has resulted in the marginal representation of trade unions in Hong Kong with only very few workers covered by collective agreements in a very limited number of industries, such as some construction trades, printing and stevedore; but the agreements reached are not binding and very often not followed by the employers. Furthermore, the Government does not comment on the concrete examples given by the complainant on the experience of certain major organizations in Hong Kong -- such as the Hong Kong International Terminal Group Employees' General Union, the Hong Kong Telephone Co. Ltd. Staff Association, and the Kowloon Motor Bus Co. Ltd. Staff Association -- which have witnessed their employers' refusal to negotiate terms of employment or alternatively to implement agreements that have been negotiated. Finally, in response to the allegation that the Government had "launched a frontal attack on collective bargaining" during the debate over the adoption of the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance of 1997, the Government merely indicates that this allegation is unfounded. The Committee notes, however, from the information provided by the complainant that during the Legislative Council debate on the 1997 Collective Bargaining Bill, one of the reasons put forward by the Secretary for Education and Manpower for not adopting the Collective Bargaining Bill was that:

The Committee considers that the above reason for not adopting provisions to promote collective bargaining is in contradiction with the obligation incumbent upon the Government under Article 4 of Convention No. 98. Furthermore, it runs contrary to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in 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 the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers' and employers' organizations should have the right to organize their activities and to formulate their programmes [Digest, op. cit., para. 782]. The Committee further notes that another objection to the enactment of legal provisions for collective bargaining put forward by the Secretary for Education and Manpower during the debate was that collective bargaining would cause conflicts between unions and between members and non-members of trade unions which would hinder the speedy settlement of disputes in contrast to the existing machinery of voluntary negotiation between labour and management. The Committee has stated on previous occasions that precisely in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect [Digest, op. cit., para. 838].

270. In the light of the principles enunciated in the preceding paragraph, it is the Committee's view that the case at hand furnishes a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes. Regretting that the Government chose to repeal the Employees' Right to Representation, Consultation and Collective Bargaining Ordinance of 1997 which contained provisions to that end, the Committee would request the Government to give serious consideration to the adoption of appropriate provisions which respect freedom of association principles in the near future.

The Committee's recommendations

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

Appendix I

Summary of three controversial labour laws in Hong Kong, 1997,
provided by the HKCTU

Name of ordinance

Before June 1997 Amendments

June 1997 Legislative Council Amendments

October 1997 Provisional Legislative Council Amendment

Trade Union (Amendment) (No.2) Ordinance,
1997
  1. Bans use of union funds for political purposes.
  2. Restricts federation of cross-sectoral unions.
  3. Government prior approval required for association of local unions to overseas bodies.
  4. Bans the election of persons from outside the enterprise or sector on the executive committee of unions and union federations.
  5. Age limit of union officials restricted at 21.
  1. Removal of government restriction on the use of union funds.
  2. Removal of restriction on the federation of cross-sectoral unions.
  3. Removal of the requirement of government approval for the international affiliation of trade unions.
  4. Removal of ban on the election of persons from outside the enterprise or sector on the executive committee of unions and union federations.
  5. Lowers the age limit of union officials from 21 to 18.
  1. Bans use of union funds for political purposes.
  2. Allows cross-sectoral union federations.
  3. Allows free association to overseas trade unions.
  4. Removal of ban on the election of persons from outside the enterprise or sector on the executive committee of federations; but ban retained for unions.
  5. Lowers the age limit of union officials from 21 to 18.

Employment (Amendment) (No.4)
Ordinance
1997

In case of dismissal of employees due to their union activities, they are entitled to compensation payment.

In case of dismissal of employees due to their union activities, they can demand reinstatement or fair compensation.

In case of dismissal of employees due to their union activities, they are entitled to compensation payment.

Employees'
Right to Representation, Consultation
and Collective Bargaining Ordinance

No legal stipulation nor protection.
  1. Representation: All registered trade unions of all enterprises have the right to be the bargaining representatives.
  2. Consultation: unions which organize more than 15% of the workforce of enterprises with over 20 employees have the right to be the consultation representative with the management.
  3. Collective bargaining: unions which organize more than 15% of the workforce enterprises with over 50 employees, when authorized by over half of the workforce, have the right to be bargaining representative with the management.

No legal stipulation nor protection.


Case No. 1787

Interim report

Complaints against the Government of Colombia
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Latin American Central of Workers (CLAT)
-- the World Federation of Trade Unions (WFTU)
-- the Single Confederation of Workers of Colombia (CUT)
-- the General Confederation of Democratic Workers (CGTD) and
-- the Trade Union Association of Civil Servants of the Ministry of Defence, Armed Forces, National Police and related bodies (ASODEFENSA)

Allegations: Murders and other acts of violence against trade union officials
and members and anti-union dismissals

272. The Committee last examined this case at its March 1998 meeting [see 309th Report, paras. 69-91]. The International Confederation of Free Trade Unions (ICFTU) sent additional information in communications dated 5 March, 8 June, 10 August and 21 October 1998. The World Federation of Trade Unions sent additional information in a communication dated May 1998. The Single Confederation of Workers of Colombia (CUT) and the Trade Union Association of Civil Servants of the Ministry of Defence, Armed Forced, National Police and related bodies (ASODEFENSA), submitted new allegations relating to this case in communications dated 29 April, 20 and 26 October, and 23 June 1998 respectively. The Latin American Central of Workers (CLAT) presented new allegations in communications of 19 and 21 October 1998. The General Confederation of Democratic Workers (CGTD) presented allegations relating to this case in communications of 16 and 25 October 1998.

273. The Government sent partial observations in communications dated 12 and 27 March and 18 May 1998.

274. Colombia 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

275. During the previous examination of the case, when it dealt with allegations concerning the murder, disappearance and other acts of violence against trade union officials and members, as well as anti-union dismissals, the Committee made the following recommendations [see 309th Report, para. 91, sections (d), (e), (f) and (g)]:

Murders and disappearances

Attempted murders

Death threats

Detentions and raids on homes

Raids on union headquarters, telephone tapping,
surveillance of trade union members

A raid on the headquarters of the Single Agricultural Trade Union Federation (FENSUAGRO), and tapping of telephones in the union headquarters and of members' telephones and surveillance of the President of the Federation, Luis Carlos Acero, by armed persons.

Physical aggression and police repression

B. New allegations and additional information

276. The International Confederation of Free Trade Unions (ICFTU) in its communications of 5 March and 8 June, the Single Confederation of Workers of Colombia (CUT), in its communication of 29 April 1998, the World Federation of Trade Unions (WFTU) in its communication of May 1998, the Trade Union Association of Civil Servants of the Ministry of Defence, the Armed Forces, the National Police and related bodies (ASODEFENSA) in its communication of 23 June 1998, allege the following:

Murders and attempted murders of trade union
officials and members

Death threats against union officials and members

Raids on union headquarters

Trade union persecution

277. The International Confederation of Free Trade Unions (ICFTU) in a communication of 21 October 1998, the Latin American Central of Workers (CLAT) in communications of 19 and 21 October 1998, the Single Confederation of Workers of Colombia (CUT) in communications of 20 and 26 October 1998, and the General Confederation of Democratic Unions (CGTD) in communications of 16 and 25 October 1998 presented new allegations and provided supplementary information in relation to this case. In particular, these organizations allege that in October 1998, the three trade union confederations of Colombia (CUT, CGTD and CTC) and a large number of trade unions called a national strike of government workers to protest against the economic and social policies of the Government in order to obtain a salary increase to be able to maintain the purchasing power of state workers (a list of demands had been submitted in advance). The complainants state that the Government refused to negotiate, and responded with an attitude of provocation and intolerance, and through administrative powers, declared the strike illegal in relation to many sectors (petroleum, tax collection, the judiciary, social security institution, banking). They add that the police, acting on the instructions of the Government, violently evicted workers who were peacefully occupying the sites of certain entities on strike, and physically assaulted the workers; the same occurred during a peaceful protest in Popayán and Pasto on 20 October 1998.

278. Since the beginning of the national strike in October 1998 the following acts of violence were commited against trade unionists and trade union officers:

Murders: (1) Orfa Ligia Mejía, trade unionist, 7 october 1998, municipality of Ipiales in the department of Nariño; (2) Marcos Pérez González, member of the Electricity Union of Colombia (SINTRELECOL), 10 October 1998; (3) Jorge Ortega García, Vice-President of the CUT, 20 October 1998 (Mr. Ortega García had submitted a few hours prior to his murder new allegations in relation to this complaint); (4) Hortensia Alfaro Banderas, Vice-President of the SIDESC, 24 October 1998, municipality of Manure, department of Cesar; (5) Macario Barrera Villota, member of the Teachers' Association of Huila, 25 october 1998, Neiva, department of Huila; (6) Jairo Cruz, President of the Workers' Union of Proaceites, 26 October 1998, municipality of San Alberto, department of Cesar;

Physical assaults and wounding: (1) Virgilio Ochoa, trade unionist of SINTRACUAEMPONAL, 15 October 1998, Barrancabermeja; (2) Ugeniano Sánchez, trade unionist of SINTRACUAEMPONAL, 15 October 1998, Barrancabermeja, received four bullets in the head; (3) Benito Rueda Villamizar, President of SINTRACUAEMPONAL, 16 October 1998; (4) Mario Vergara and Herberto López, trade union leaders of SITTELECOM, were brutally kicked by the police; (5) 13 October 1998, the police violently struck the workers of SITTELECOM, wounding a number of them; (6) 20 October 1998, in Bogotá, on 7th avenue, between 24th and 27th street, the riot police attacked workers at the start of a peaceful demonstration in the direction of the Plaza Bolívar, and on 22 October 1998, the police attacked demonstrators who had arrived at Plaza Bolívar, having come from all over the world;

Detention: (1) José Ignacio Reyes, trade unionist of SITTELECOM, 8 October 1998; (2) Orlando Rivero and Sandra Parra, 16 October 1998, in the San Francisco quarter of Bolívar;

Death threats: (1) the spouses of trade union leaders of the United Coordinated National (grouping together CUT, CGTD and CTC).

Finally, all the sites of TELECOM, ECOPETROL, the agricultural fund, the social security institute (ISS) and various health centres and other institutions were invaded by the military.

C. The Government's reply

279. In communciations of 12 March and 18 June, in connection with the alleged acts of violence against trade union officials and members, the Government states that:

Murders and disappearances

Judicial inquiries are being carried out in connection with the following individuals: Aurelio Arbeláez (4 March 1997); Guillermo Asprilla (23 July 1997); Félix Avilés Arroyo (1 December 1997); Juan Camacho Herrera (25 April 1997); Luis Orlando Camaño (Camacho) Galvis (20 July 1997); Hernando Cuadros (1994); Freddy Francisco Fuentes Paternina (18 July 1997); Néstor Eduardo Galindo (6 March 1997); Víctor Julio Garzón (7 March 1997); Isidro Segundo Gil Gil (9 December 1996); José Silvio Gómez (1 April 1996); Enoc Mendoza Riascos, Carlos Arturo Moreno, Luis Orlando Quiceno López, Nazareno de Jesús Rivera, Arnold Enrique Sánchez Maza, Camilo Suárez Ariza, Mauricio Tapias Llerena, Atilio José Vásquez, Luis Abel Villa León (León Villa), Odulfo Zambrano López, Pedro Acosta Uparela (disappeared on 28 December 1996); Rodrigo Rodríguez Sierra (disappeared on 16 February 1995); and Alvaro Taborda (disappeared on 8 January 1997).

Death threats

The Government states that steps have been taken to carry out judicial and police inquiries into death threats against the following trade union officials and members:

Detentions

Regarding the detention in December 1996 of Edgar Riaño, official of the Workers' Trade Union (USO), and of ECOPETROL members Marcelino Buitrazo, Felipe Mendoza, Monarge Sánchez, Guillermo Cárdenas, Rafael Estupiñán, Hernán Vallejo, Luis Rodrigo Carreño, Leonardo Mosquera, Fabio Liévano and César Carrillo, the Government states that they are being charged with offences of rebellion in conjunction with terrorism and association to commit crime.

280. Finally, in a communication of 27 March 1998, in connection with the allegations of anti-union acts in the banking sector, the Government states that after reviewing complaints submitted to the Ministry through the Regional Labour Office of Santa Fé de Bogotá, it was found that the National Union of Banking Employees (UNEB) had filed complaint No. 4217 of 21 March 1996 against the Banco Andino for alleged violation of convention standards; once the respective inquiry had been conducted, Decision No. 000125 of 25 January 1998 was issued by the Division of Inspection and Supervision of the General Labour Office of Santa Fé de Bogotá, imposing a fine on the Banco Andino, which is now appealing against the decision. Furthermore, the Ministry has received no complaint in connection with the alleged acts by the Banco Andino and Citibank against the UNEB. Given this state of affairs and with a view to developing freedom of association and collective bargaining within a legal framework, steps have been taken, through the Division of Inspection and Supervision of the General Labour Office of Santa Fé de Bogotá, to initiate an inquiry into the allegations.

D. The Committee's conclusions

281. Before analysing the allegations and observations communicated by the Government, the Committee wishes to reiterate the grave concern it had expressed when it examined this case in its meetings of March 1997 and March 1998 [see 306th and 309th Reports, paras. 274 and 82], regarding the allegations which relate principally to murders (over 150), disappearances, physical aggression, detentions and death threats against trade union officials and members and raids on trade union premises.

282. The Committee recalls that the report of the direct contacts mission to Colombia in 1996 stated that "an impressive amount of violence is targeted against persons holding trade union office or whose physical integrity and personal freedom are attacked solely on account of their trade union activity" [see 306th Report, op. cit., p. 93]. The Committee deplores that it must acknowledge not only that violence against trade unions has not declined, but that the allegations communicated in recent years (1997-98) appear to indicate that it has increased. Similarly, the Committee is deeply concerned and notes with consternation that there is no indication that any perpetrators of the alleged acts of violence against trade union officials and members have been arrested, tried and sentenced, thereby demonstrating the "total impunity" reported by the National Procurator to the direct contacts mission [see 306th Report, report on the mission to Colombia, p. 95]. Moreover, taking into account the nature of the allegations and that it was mentioned in the report of the last direct contacts mission that the Public Defender in his 1996 report to Congress affirmed that "there are still people in the armed forces and police who commit illegal and arbitrary acts in the course of their military and police activities" and "today thousands of Colombians are still terrorized by paramilitary groups" [see 306th Report, p.85 of the English version], the Committee, observing that the situation has not improved since that time, condemns the progressive deterioration of the situation and points out that it is the responsibility of the Government to guarantee the correct comportment of its security forces which, in any event and at all times, must respect human rights.

283. Similarly, the Committee notes with deep concern that the acts of violence against trade union officials and members have extended to persons close to them, by reason either of family ties, or of their professional activities. In this regard, the Committee deeply regrets the murder of Dr. José Umaa Mendoza on 18 April 1998 in the city of Bogotá. Dr. Umaa Mendoza was the defence attorney of the officials and members of the Workers' Trade Union (USO), some of whom feature on the list of persons in detention appearing in the annex to this report. Consequently, the Committee urges the Government to put an end to all acts of violence against trade union officials and members and those close to them.

284. The Committee emphasizes that "the killing, disappearance or serious injury of trade union leaders and members requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and on the circumstances in which they occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events", and that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 51 and 55].

Allegations of acts of violence regarding which
investigations have been instituted

285. Regarding the allegations pending after examination of the case in the March 1998 version, the Committee notes that the Government states that judicial investigations have been initiated in connection with the following cases: Aurelio Arbeláez (murdered on 4 March 1997); Guillermo Asprilla (murdered on 23 July 1997); Félix Avilés Arroyo (murdered on 1 December 1997); Juan Camacho Herrera (murdered on 25 April 1997); Luis Orlando Camaño Galvis (murdered on 20 July 1997); Hernando Cuadros (murdered in 1994); Freddy Francisco Fuentes Paternina (murdered on 18 July 1997); Néstor Eduardo Galindo (murdered on 6 March 1997); Víctor Julio Garzón (murdered on 7 March 1997); Isidro Segundo Gil Gil (murdered on 9 December 1996); José Silvio Gómez (murdered on 1 April 1996); Enoc Mendoza Riasco (murdered on 7 April 1997); Carlos Arturo Moreno (murdered on 7 June 1995); Luis Orlando Quiceno López (murdered on 16 July 1997); Nazareno de Jesús Rivera (murdered on 12 March 1997); Arnold Enrique Sánchez Maza (murdered on 13 July 1997); Camilo Suárez Ariza (murdered on 21 July 1997); Mauricio Tapias Llerena (murdered on 21 July 1997); Atilio José Vásquez (murdered in July 1997; while the complainant organization lists him as disappeared, the Government includes him on the list of murder victims); Luis Abel Villa León (murdered on 21 July 1997); Odulfo Zambrano López (murdered on 27 October 1997); Pedro Acosta Uparela (disappeared on 28 December 1996); Rodrigo Rodríguez Sierra (disappeared on 16 February 1995); Alvaro Taborda (disappeared on 8 January 1997). Death threats: Aguirre Restrepo Oscar, Arango Alvaro Alberto, Barrio Castaño Horacio, Cadavid Martha Cecilia, Franco Jorge Humberto, Giraldo Héctor de Jesús, Gutiérrez Jairo Humberto, Jaramillo Carlos Hugo, Jaramillo Galeano José Luis, Ramos Zapata Rangel, Restrepo Luis Norberto, Jorge Sliecer Marín Trujillo, Víctor Ramírez. Detentions: Edgar Riaño, Marcelino Buitrazo, Felipe Mendoza, Monarge Sánchez, Guillermo Cárdenas, Rafael Estupiñán, Hernán Vallejos, Luis Rodrigo Carreño, Leonardo Mosquera, Fabio Liévano, César Carrillo. The Committee expresses its deep concern over these acts of violence and murders and condemns them. It requests the Government to keep it informed, as a matter of urgency, of the judicial investigations and proceedings under way.

286. Likewise, the Committee requests the Government to keep it informed of the outcome of the judicial investigations under way, as stated during the previous meeting of the Committee (March 1998), in connection with murders, disappearances and death threats against the following trade union officials and members: Murders: Antonio Moreno (12 August 1995); Manual Ballesta (13 August 1995); Francisco Mosquera Córdoba (February 1996); Carlos Arroyo de Arco (February 1996); Francisco Antonio Usuga (22 March 1996); Pedro Luis Bermúdez Jaramillo (6 June 1995); Armando Umanes Petro (23 May 1996); William Gustavo Jaimes Torres (28 August 1995); Ernesto Fernández Pezter; Jaime Eliacer Ojeda; Alfonso Noguera; Alvaro Hoyos Pabón (12 December 1995); Libardo Antonio Acevedo (7 July 1996); Néstor Eduardo Galíndez Rodríguez (4 March 1997); Erieleth Barón Daza (3 May 1997); Jhon Fredy Arboleda Aguirre, William Alonso Suárez Gil and Eladio de Jesús Chaverra Rodríguez (11 February 1997 to 7 March 1997); Luis Carlos Muñoz (7 March 1997); Nazareno de Jesús Rivera García (12 March 1997); Héctor Gómez (22 March 1997); Gilberto Casas Arboleda, Norberto Casas Arboleda, Alcides de Jesús Palacios Arboleda and Argiro de Jesús Betancur Espinosa (11 February 1997); Bernardo Orrego Orrego (6 March 1997); José Isidoro Leyton (25 March 1997); Magaly Peñaranda (27 July 1997); David Quintero Uribe (4 August 1997); Eduardo Enrique Ramos Montiel (14 July 1997); Libardo Cuéllar Navia (23 June 1997); Wenceslao Varela Torrecilla (29 July 1997); Abraham Figueroa Bolaños (25 July 1997); Edgar Camacho Bolaños (25 July 1997); Disappearance: Ramón Osorio (disappeared on 15 April 1997); Death threat: Jairo Alfonso Gamboa López.

Allegations of acts of violence on which the Government
has not communicated its observations

287. The Committee notes that the Government has not communicated any information on the numerous pending or presented allegations in 1997 and 1998 in connection with the murders, disappearances, physical aggressions and death threats against trade union officials and members, as well as raids on union premises (see annexed the complete list of allegations on which the Government has not communicated its observations). The Committee further urges the Government to communicate its observations on all the allegations in the annex of this case without delay. In the light of the prevalence of violence against trade unionists, the Committee urges the Government to take immediate steps to provide protection to those trade union officials and members who have received death threats, appearing in the annexed list.

Anti-union acts

288. In connection with allegations pending on anti-union acts in the banking sector following its previous examination of the case, the Committee notes specifically that the ICFTU alleged that the National Union of Banking Employees (UNEB) presented a list of demands to the Banking Association covering 30 entities in the banking sector but that the Association refused to act as the intermediary with respect to these 30 financial institutions. The UNEB, in the legal exercise of its trade union activities, organized marches, demonstrations, public information meetings and, through its publications, provided information on the dispute and the state of negotiations. According to the complainant, the employers of the banking entities, with the support of the police, impeded the free exercise of trade union and information rights, using repressive methods such as physical aggression, the locking up of union leaders in building elevators, the denial of access for union leaders to places where they met with workers to supply information, etc., going so far as to include the arbitrary detention of the UNEM leader, Carlos Romero, who was later released. The complainant has stated that, in the Citibank and Banco Andino, trade union leaders responsible for informing the employees of the developments in the dispute and the negotiations were obstructed from entering these banks, frequently with the use of public forces. According to the allegations, these actions were accompanied by blackmail and threats of dismissal of the workers if they listened to the information provided by the trade union leaders and if they exercised their constitutional rights of freedom of association. In addition, the complainant states that the Citibank branches in Santa Fé of Bogotá where repression of trade union activity has been most intense are those of Puente Aranda, Barrio Chico, Barrio Cedritos and Jimenez Avenue. On 2 December 1997, the manager of the Jimenez Avenue branch took photographs of a number of trade union leaders and workers. The purpose for which these photographs were intended is unknown. The taking of photographs and making of video recordings by banking employers has become a frequent practice which had previously been carried out by the security chiefs of the Sudameris and Anglo Colombiano banks.

289. In this connection, the Committee notes that the Government states that: (1) the National Union of Banking Employees (UNEB) communicated a complaint to the Regional Labour Office of Bogotá against the Banco Andino for alleged violation of convention standards, in response to which the administrative authorities decided to impose a fine on the bank. The Banco Andino is appealing against this decision; (2) no reports have been submitted to the Ministry of Labour regarding the alleged anti-union conduct by the Banco Andino and Citibank but the Inspection and Supervision Division of the Regional Labour Office of Bogotá has nonetheless initiated an inquiry in this connection. The Committee urges the Government to keep it informed regarding the results of the appeal lodged by the Banco Andino against the administrative decision to impose a fine for violation of convention standards, and regarding the inquiry ordered into the alleged anti-union acts committed by the authorities of the Banco Andino and Citibank. The Committee further asks the Government to extend the scope of its inquiry to include the Sudameris and Anglo Colombiano banks, which are also mentioned by the complainants and, if the allegations are substantiated, to punish those responsible for such acts and to prevent a repetition of such acts in the future.

290. The Committee asks the Government to communicate without delay its observations on (1) the allegations regarding acts of trade union persecution against officials and members of the Trade Union Association of Civil Servants of the Ministry of Defence, Armed Forces, National Police and related bodies (ASODEFENSA), and (2) concerning the allegations presented by the ICFTU, CLAT, CUT and CGTD in October 1998 concerning the murder, physical assaults, death threats and detention of trade unionists and trade union leaders arising out of the national strike of government workers. In this context, the Committee observes that Jorge Ortega García, Vice-President of the CUT, was among the trade union leaders murdered in October 1998, who the day he was murdered had signed a communication presenting new allegations relating to this case and who had also received death threats. The Committee deeply deplores the murder of Mr. Ortega García and observes that this is the second time that a trade union leader submitting a complaint of violations of trade union rights before the Committee on Freedom of Association is murdered.

291. The Committee reiterates its request to the Government to keep it informed on the results of the judicial process under way on the dismissal of trade union officials and members of the ALFAGRES S.A. and TEXTILIA Ltd. companies and of the Ministry of Finance.

The Committee's recommendations

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

Annex

Allegations on which the Government has not
communicated its observations

Murders and disappearances

Detention of trade union officials and members

Raids on union headquarters, telephone tapping,
surveillance of trade union members

Physical aggression and police repression

Attempted murder

Death threats

Case No. 1865

Interim report

Complaint against the Government of the Republic of Korea
presented by
-- the Korean Confederation of Trade Unions (KCTU)
-- the Korean Automobile Workers' Federation (KAWF) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Arrest and detention of trade union leaders and
members; government refusal to register newly established
organizations; adoption of labour law amendments contrary to
freedom of association

293. The Committee already examined the substance of this case at its May 1996, March and June 1997 and March 1998 meetings, when it presented an interim report to the Governing Body [304th Report, paras. 221-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; 309th Report, paras. 120 to 160 approved by the Governing Body at its 266th, 268th, 269th and 271st Sessions (June 1996, March and June 1997 and March 1998)].

294. The Korean Confederation of Trade Unions (KCTU) presented new allegations in communications dated 18 August and 9 September 1998.

295. The Government furnished its observations in communications dated 29 September, 23 and 29 October 1998.

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

A. Previous examination of the case

297. In December 1997, the Government agreed to receive a high-level ILO tripartite mission to the country to examine the issues raised in Case No. 1865. This mission which visited the Republic of Korea from 9 to 13 February 1998 issued a report on the basis of which the Committee reached interim conclusions during its previous examination of this case.

298. The case had addressed allegations both of a legislative and factual nature. With regard to the allegations of a legislative nature, the Committee had noted that a Tripartite Commission composed of representatives of the Government, employers' and workers' organizations, was established on 15 January 1998 to deal with a series of reforms concerning economic and labour-related issues including those pertaining to freedom of association. The Committee had noted with interest that the proposed reforms relating to freedom of association issues, if adopted by the National Assembly, would bring the industrial relations system prevailing in the Republic of Korea more fully into line with freedom of association principles and the Committee's previous recommendations. Moreover, these reforms, if implemented, would necessitate the corresponding amendments to the Trade Union Labour Relations Adjustment Act (TULRAA) which contained provisions which the Committee had considered to be contrary to freedom of association principles including those relating to the denial of the right of public servants and teachers to establish and join organizations of their own choosing, the illegality of trade union pluralism at the enterprise level, the requirement to notify the identity of third parties who intervene in collective bargaining and industrial disputes, the prohibition of the right to strike in non-essential services, the prohibition of the payment of full-time union officials by employers, the denial of the right to organize of dismissed and unemployed workers and the ineligibility of non-members of trade unions to stand for office. Within the context of the possibility, under the TULRAA, of trade union pluralism at the national and industrial levels, the Committee had also requested the Government to ensure that the Korean Confederation of Trade Unions (KCTU) was registered as a trade union organization as soon as possible, noting that the main obstacle to the KCTU's registration appeared to be the affiliation to it of CHUNKYOJO, an illegal teachers' organization at the time.

299. Regarding the allegations of a factual nature, the Committee had first of all requested the Government to ensure the dropping of all remaining charges which had been brought against Mr. Kwon Young-kil, former president of the KCTU, as a result of his trade union activities. The Committee had noted with satisfaction that four trade union leaders, who were the subject of the complaint, had been released and was further pleased to learn that the new President was seriously considering an amnesty for these trade unionists detained as a result of their trade union activities.

300. At its March 1998 session, in light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

B. The KCTU's new allegations

301. In its communication dated 18 August 1998, the KCTU states that on 17 July 1998, the management of Hyundai Motors Co., delivered "termination" notices to some 1,600 workers including elected union officials. The KCTU asserts that the Government, in failing to supervise the conduct of the management of Hyundai Motors Co., has approved a flagrant violation of trade union rights.

302. The KCTU explains that originally Mr. Kim Kwang-shik, the current elected President of the Hyundai Motors Workers' Union (and a vice-president of the Korean Metal Workers' Federation), 25 other elected officials, 89 elected union delegates (shop stewards) and members of rank-and-file activists groups were included in the "termination" list. Later, the management withdrew 11 union officials -- including president Kim Kwang-shik -- from the list. This left 15 full-time union officials on the list for "redundancy termination", together with 89 delegates and 11 officers of union branch offices. A total of 115 elected union officials and delegates were therefore served with "termination notices". A total of 289 members of five major rank-and-file activists groups were also served with "termination notices". Hence, full-time union officers, elected union delegates (shop stewards) and union leaders (the KCTU provides the names of these persons which are reflected in Appendix I) served with termination notice were:

303. The KCTU believes the "termination" undertaken by the Hyundai Motors management was an act calculated to destroy the union, which has become one of the most important trade unions in the Republic of Korea. The fact that the current management campaign is bent on destroying the union is demonstrated by its refusal to respond responsibly to the proposal made by the union for cost reduction. The union proposal -- centred on a working hour reduction plan -- included a drastic labour cost reduction package, including wage cuts totalling 250 billion won (5 million won per worker) through a suspension of various allowances and long-term leave with partial wage (the remainder of the wage partially compensated by fund to be created by the union). The new union proposal follows its earlier contribution to cost reduction from the co-sponsored "voluntary early retirement" package in the previous months, which facilitated the reduction of the workforce by more than 8,000 employees. The total cost reduction to be obtained from the union's proposal -- if added to the cost reduction obtained from the "voluntary early retirement" by more than 8,000 workers -- surpasses the original cost reduction goal set by the management.

304. According to the KCTU, it is clear that the forced termination of employment pursued by the management is not grounded on economic reasons. The foremost reason, the KCTU believes, lies in the management's aim to destroy the Hyundai Motors Workers' Union which is one of the most important members of the Korean Metal Workers' Federation and the KCTU itself. Moreover, the Government, apart from its failure to correct the redundancy dismissal plan which includes the dismissal of elected union officers, has also debilitated the trade union in fulfilling its responsibility to defend the rights and welfare of its members by failing to compel the Hyundai Motors management to comply with the legal provision that governs the "redundancy dismissal". The Government has failed to encourage and supervise the Hyundai Motors management to exhaust "every effort to avoid dismissal" as required by the Labour Standard Act (article 31, paragraph 2). It cannot deny its complicity in the Hyundai Motors management's refusal to take any significant effort to avoid "dismissal for managerial reasons" as can be seen by its refusal to entertain the proposals for cost reduction presented by the union. This is highlighted by the fact that the Government, when notified of the Hyundai management's plan on 30 June 1998 for "dismissal for managerial reasons" failed to advise the management to seek the assistance of the Employment Insurance Employment Retention Assistance Fund which can be used to finance various dismissal avoidance efforts. Companies can draw on this Fund -- which currently stands at around 1 trillion won -- for financial assistance in undertaking working hour reduction, in-house skills upgrading training, etc. as a means for employment retention. The Government's negligence to uphold the legal provisions calling for sincere efforts on the part of the management is aggravated by its approval of the management's plan to use the "dismissal for managerial reasons" as a means to attack, debilitate and destroy the trade union. In doing so, the Government -- as the state authority entrusted with the responsibility to uphold basic trade union rights -- cannot escape the charge of committing a serious violation of the freedom of association.

305. The KCTU then goes on to protest the arrest and imprisonment of trade unionists for legitimate trade union activities. It contends that currently 57 trade unionists, including Mr. Koh Young-joo, the General Secretary of KCTU, are held in prison. Furthermore, some 200 trade unionists, including Mr. Yoo Deuk-sang, the First Vice-President of KCTU, and Mr. Dan Byung-ho, Vice-President of KCTU and President of KCTU-affiliated Korean Metal Workers' Federation, have arrest warrants issued against them. The charges against them stem from the May Day rally on 1 May 1998 and two general strikes organized by KCTU on 27-28 May 1998 and 14-16 July 1998 (and strike actions at individual enterprises).

306. The May Day rally was organized by the KCTU to highlight the suffering of workers from rampant mass dismissals and rapidly expanding job losses leading to mass unemployment brought about by the acute economic crisis and the unilateral structural adjustment policies undertaken by the Government. The KCTU had obtained prior permission for the mass meeting of workers -- attended by some 30,000 workers from all over the Republic of Korea -- and the street march in Seoul. However, the police, who had cordoned off the site of the mass meeting, obstructed the peaceful activities by harassing workers who were trying to take part in the rally. Furthermore, the police fired barrages of tear gas into the crowd participating in the mass meeting. Once the mass meeting had finished, KCTU members prepared to march on the footpath as planned and reported to the police. However, the riot police blocked the road and the footpath and prevented the march from starting off. When more people from the mass meeting gathered to begin the march, the riot police responded by firing tear gas from multiple launching vehicles. The KCTU members were forced to disperse and fill out into the street to avoid the effect of tear gas. The continued tear gas barrage triggered a clash between the more than 30,000 workers and the riot police as workers tried to keep their ranks to continue with the march. The Government responded to the police-provoked clash with warrants of arrest against a number of trade unionists who reacted against the police violence. As a result, a number of unionists were arrested. Later, in an agreement between the KCTU and government representatives on 5 June 1998, the Government committed itself to withdraw all charges against persons either arrested or wanted for arrest for the May Day incident. The agreement came following a general strike launched by the KCTU on 27 and 28 May 1998.

307. However, the KCTU was forced to launch another general strike on 14 July for three days to protest the failure of the Government to honour the agreement made on 5 June. The strike, led by the members of the Korean Metal Workers' Federation, the Korean Telecom Trade Union, and the workers of five banks forcibly closed by the Government, was declared illegal by the Government, despite the fact that the individual unions which took part in the general strike had complied with all the procedural conditions prescribed by the law. According to the KCTU, the Government had absolutely no legal cause for declaring the strike action of the unions affiliated to the Korean Metal Workers' Federation illegal. On the other hand, the strike by the Korea Telecom Trade Union was seen by the Government to be a violation of the Trade Union and Labour Relations Adjustment Act (TULRAA) which defines the telecommunication industry as an "essential public service" in which collective action is illegal. However, the KCTU indicates that it cannot accept the Government's decision with regard to the illegality of the strike by the Korea Telecom Trade Union because the relevant legal provision on which it is based is in violation of freedom of association principles.

308. Another reason for calling a general strike relates to the legal provision which recognizes only those industrial actions and disputes between an employer and employees at the workplace as protected (article 2, TULRAA). It means that a union can only undertake "industrial action" on workplace-specific issues, and that a national trade union organization cannot take action on general economic and social policy issues. This narrow definition of legitimate trade union action in defence of workers' rights and welfare has long been seen as a debilitating limitation on basic trade union rights.

309. The Government declared the 14-16 July general strike illegal and issued warrants of arrest against some 140 trade union leaders. As a result of the Government's hunt against trade union leaders, the General Secretary of the KCTU was arrested on 19 July 1998. Some 57 leaders and officers of the Korean Metal Workers' Federation, the Korea Telecom Trade Union, the Korean Federation of Public Sector Unions and the Korean Federation of Financial Institutes Labour Unions were arrested and held either by the police or the public prosecutor (names of these persons are attached to this complaint in Appendix 2). On 30 July, the KCTU reached an agreement with the Government whereby the Government promised to minimize legal action against the KCTU unionists. Despite the promise, the Government continues to incarcerate the trade union leaders, either by continuing imprisonment or threats of arrest. As a result, currently 57 trade union leaders are held in prison, others forced to seek refuge at the Myondong Cathedral, while still many other local leaders are hiding to keep at bay the police dragnet. The continued government harassment against the leaders has seriously disrupted and disabled the proper functioning of the trade unions in times of serious difficulty faced by the members in the context of worsening economic crisis.

310. In its communication dated 9 September 1998, the KCTU points out that recently the Government dismissed two of its employees for being involved in the efforts to build an independent civil servants' organization. The first dismissal, on 22 June 1998, came when the Kwangju Regional Taxation office ordered a punishment of dismissal against Mr. Kim Dong-il, a taxation secretary at the Mokpo Taxation Office Branch. The order followed a decision by the Kwangju Regional Taxation Office Ordinary Disciplinary Board on 12 June (a copy of this decision is attached to the complaint). The second government retaliation against the autonomous efforts of government employees came as the Yongsan Ku Office (Yongsan-Ku is a city-level district within Seoul, while Seoul is a province-level administrative unit in Korea) ordered, on 4 August 1998, the dismissal of Lee Seung-chan following its request, on 17 April, to the Second Personnel Committee of Seoul City Administration for a "heavy disciplinary action" (a copy of this decision is attached to the complaint). The two public servants were dismissed by the Government -- following the deliberations of the relevant disciplinary authority -- for their involvement in the "Public Servants' Works Council Preparation Committee". The Preparation Committee has been organized by a small number of currently employed public servants and those who have already left the public service. The body was originally organized as a "National Public Servants' Union Preparation Committee" with the assistance of the KCTU.

311. The KCTU explains that the "Union Preparation Committee" was initiated in early 1997 by some current and former public servants to begin raising awareness on the need for organizing public servants. It worked closely with the KCTU, as the KCTU was a leading organization critical of the Government's prohibition of the unionization of public servants or government employees. The "Union Preparation Committee" was transformed into the "Public Servants' Works Council Preparation Committee" following the government commitment to allow a non-union voluntary association of public servants as a precursor to possible lifting of the ban on unionization. Subsequently, the Government introduced a law to provide a legal provision for a "public servants' works council" and began preparing necessary decrees and regulations for the establishment and operation of a "public servants' works council", in time for the scheduled implementation of the law set for January 1999. The "Preparation Committee" set out a plan of activities involving education, publicity, etc. It was important to educate public servants of what a "works council" could do, how it could be done, what were its rights, how it could be made most effective, etc. But neither the "Preparation Committee" nor the KCTU and other trade union organizations were given a hearing by the Government in its preparations for laying down the basic framework of the public servants works councils. Instead, the Government dismissed two public servants in retaliation for their involvement in the "Preparation Committee", insisting that public servants are not allowed to engage in any kind of "collective activity".

312. More specifically, the KCTU describes the events leading to the dismissal of the two public servants. According to the "personnel directive" issued by the Chief of the Kwangju Regional Taxation Office, on 22 June, to Mr. Kim Dong-il, Mr. Kim was found to have been involved in the "Public Servants' Works Council Preparation Committee" and acted, since 22 March 1998, as one of its co-chairpersons. He was also found, on 25 March 1998, to have taken part in a press conference held by the Preparation Committee, to declare its views on the "Government's decision to reduce public servants' wages". The Preparation Committee, of which Mr. Kim is a co-chairperson, was also producing a weekly bulletin distributed to employees throughout government offices. The directive notes that Mr. Kim had been investigated by the Auditors' Office of the Kwangju Regional Taxation Office as his activities and involvement with the Preparation Committee were deemed illegal. The directive also notes that Mr. Kim had contacted the KCTU by telephone in October 1997 to seek advice and left his contact details. The directive outlines the results of the investigation by the authority: on 25 March 1998 the Preparation Committee held a press conference, issuing a statement in the name of the co-chairpersons, expressing its opposition to the government decision to cut back the wages of civil servants by 10 per cent. Following the press conference, Mr. Kim, as one of the co-chairpersons, gave an interview with a weekly newspaper. In this interview, Mr. Kim explained the need for a civil servants' trade union and why the group opposed the wage cut. The interview was published on 8 April 1998. The directive concludes that Mr. Kim "has taken part in the Preparation Committee knowing that it is an illegal body not recognized by the law, has accepted the offer to serve as one of the co-chairpersons, gave interviews in his capacity as the co-chairperson, explaining the need for a public servants' trade union and the opposition to the government plan to cut 10% in wages". It continued to state that a bulletin named "Together on this path" was published by the Preparation Committee with Mr. Kim as the publisher. From these findings, the directive concludes that "these activities can be deemed as collective action and it can also be deemed that the accused has taken active part in these activities". The directive, therefore, asserts that the "actions of the accused are in violation of the prohibition of collective action stipulated in Article 66 of the State public Servants Act, and thus can be subject to disciplinary action as stipulated in Number 2, Paragraph 1 of Article 78 of the same law". On the basis of the decision of the disciplinary board, the Director-General of the Kwangju Regional Taxation Office, on 22 June 1998, issued a "notice of personnel appointment" to order the dismissal based on No. 2, Paragraph 1 of Article 78 of the State Public Servants Act.

313. The KCTU points out that in another case, Mr. Lee Seung-chan was notified by the Mayor of the Yongsan-Ku Office that he had requested the disciplinary body of Seoul City Authority to hand down a "heavy disciplinary action" against him for the violation of the prohibition on collective activity stipulated in Article 58 of the Regional Public Servants Act for his involvement in the "Public Servants' Works Council Preparation Committee". Later, on 4 August 1998, Mr. Lee was served with a "disciplinary action" of dismissal on the basis of the allegations. The preliminary investigation report submitted on 17 April 1998 by the Yongsan-Ku Office to the Seoul City Administration outlines the findings against Mr. Lee. The report notes that "the Public Servants' Works Council Establishment and Operation Act does not contain any regulations permitting any kind of preparatory activities towards the establishment of a public servants' works council" and that "public servants, apart from those working in manual jobs (railway, postal service, national medical centres), are not allowed by the stipulations of the current public servants act (State Public Servants Act, Paragraph 66, and Regional Public Servants Act, Paragraph 58) to take part in labour movements or any other collective activities apart from that required for official duties". It also notes that "currently serving civil servants cannot, under the current law, take part in the 'Public Servants' Works Council Preparation Committee'". Nevertheless, Mr. Lee "on March 16, 1998, expressed his willingness to participate in the Committee in a telephone conversation with the general secretary of the body. On March 22, 1998, he took part in a meeting of the Committee in Seoul where he was inducted as a co-chairperson. Later he was listed as a co-publisher of the bulletin of the Committee. At the March 22 meeting he had directed the general secretary to release a statement to the media calling to limit the wage cuts for lower level civil servants to 5%". On 12 April 1998, Mr. Lee is noted to have taken part in a symposium held in the meeting room of the Korean Confederation of Trade Unions. In this gathering, Mr. Lee is found to have presented a talk on "The role and direction of the Public Servants' Work Council" based on a seven-page document he had prepared. The Mayor of Yongsan-Ku, based on the above findings, went on to request the disciplinary board of the Seoul City Administration to hand down a "heavy disciplinary measure" in accordance with paragraph 1, Article 69 of the Regional Public Servants Act for violation of Article 58 of the same law. On 4 August 1998 the Mayor of Yongsan-Ku issued a personnel directive that Mr. Lee be dismissed -- like Mr. Kim Dong-il, the other co-chairperson -- for his involvement in the Preparation Committee.

314. The KCTU asserts that the disciplinary actions taken by the Kwangju Regional Taxation Office and the Yongsan-Ku Office are based on an administrative guideline entitled "Countermeasures in response to the 'Public Servants' Works Council Preparation Committee'" prepared by the Ministry of Government Administration and Home Affairs on 3 April 1998 and delivered to all government offices throughout the country (a copy of these countermeasures is attached to the complaint). These countermeasures note that since "the Public Servants' Works Council Establishment and Operations Act does not contain any stipulation permitting any kind of preparatory activities with regard to the establishment of Public Servants' Works Councils", public servants -- apart from those engaged in manual work (railways, postal service, national medical centres) -- are not, in accordance with the current laws on public servants (paragraph 66 of the State Public Servants Act and paragraph 58 of the Regional Public Servants Act), allowed to take part in any kind of collective activities such as labour movement, apart from the official duties. These countermeasures conclude, therefore, that it is a violation of the current laws if a currently employed public servant is involved in the "Public Servants' Work Council Preparation Committee" and reiterates the ban on any collective activities, including the preparatory activities for the establishment of public servants' works councils. It warns: "any effort to establish any kind of organization with an aim to contribute to the smooth process of establishing or the operations of Public Servants' Works Councils prior to the implementation of the Act (to come into enforcement on 1 January 1999) or any activities of collective expression of views is a clear violation of the current laws. These activities shall therefore be dealt with strictly in accordance with the law". The "administrative guideline" ends by urging all heads of government offices to "develop a thorough understanding through education and other activities among all public servants so that they do not suffer any disadvantage by either participating in such a body or being deceived by it. Furthermore, all violators should be dealt with in accordance with legal regulations."

315. The KCTU contends that the recent government handling of the "Public Servants' Works Council Preparation Committee" makes clear that freedom of association for government employees continues to remain a hopeless cause, as workers are told that they will only be able to organize or join such an organization which is designed and dictated to or permitted by the Government. The "Public Servants' Works Council Preparation Committee", as the name suggests, is willing to accept -- despite the natural disappointment and misgivings -- "Public Servants' Works Council" as an important development. The Preparation Committee's work is devoted to providing information and assistance for the establishment and operation of the works councils. The Preparation Committee believes, however, that genuine freedom of association is only possible when employees are able to form an organization of their choice. The Preparation Committee believes the "works council" can be an important first step towards realizing true freedom of association. The KCTU shares the views of the Preparation Committee that -- despite many shortcomings -- the Public Servants' Works Council is a significant step forward towards full freedom of association. But without a genuine change in its attitude, the Government risks suppressing all independent efforts of government employees and forcing the yet-to-be established "works councils" to be nothing more than a government organization rather than an independent organization of government employees which can, within the limited scope allowed by the Government, defend their rights and welfare.

316. The KCTU considers that the recent dismissal of the two co-chairpersons of the "Preparation Committee" casts a serious doubt over the Government's intentions. The KCTU states that it is sceptical as to whether the Government will allow "works councils" to develop into genuine and autonomous collective associations even if they may not be unions. The KCTU also doubts the Government's willingness to lift the ban of unionization based on the experience of works councils. According to the KCTU, it is possible that "works councils" may turn out to be nothing more than a grievance-handling mechanism, rather than free and independent associations of public servants which can be a precursor to genuine unionization. The dismissals, the KTCU believes, are a serious violation of a very basic labour right, in addition to constituting a violation of freedom of association in that the Government continues to prohibit public servants from unionizing.

C. The Government's reply

317. In its communication dated 29 September 1998, the Government indicates that since most of the contents contained in the Committee's interim recommendations are being discussed in the second Tripartite Commission of the Republic of Korea, the Government will provide information on the launch of the Tripartite Commission and the discussions taking place within it. The second Tripartite Commission was launched in June 1998 as a presidential advisory body. It was established on the recommendation of the Grand Tripartite Compromise of 6 February 1998 that a permanent organization be set up to ensure close consultation and cooperation between economic partners to overcome the current economic crisis and to achieve nationwide unity. The second Tripartite Commission is composed of two members from government ministries (the Ministry of Labour and the Ministry of Finance and Economy), two from management (the Korea Employers' Federation (KEF) and the Federation of Korean Industries (FKI)), two from labour (the Federation of Korea Trade Unions (FKTU) and the Korea Confederation of Trade Unions (KCTU)), four from political parties (National Congress for New Politics, United Liberal Democrats, Grand National Party) and five from academic circles, totalling 15 members. The second Tripartite Commission has four subcommittees, including the Subcommittee on Industrial Relations which has selected ten priority tasks, including that of guaranteeing teachers' and public officials' basic labour rights. These ten priority tasks are as follows:

318. Regarding the right to organize of teachers, the first Tripartite Commission agreed that the Government would proceed with modifying the related laws at the regular session of the National Assembly in 1998 with a view to guaranteeing the right to organize of teachers' unions from July 1999. The second Tripartite Commission is currently discussing the matter to submit the relevant bill to the National Assembly during the fourth quarter of 1998.

319. Regarding public officials' rights of association, the Government points out that the Act on the Establishment and Operation of Workplace Associations for Public Officials was promulgated on 24 February 1998 to ensure public officials' rights of association, and is scheduled to be effective from 1 January 1999. Workplace associations, which will be established in each administrative organization from next year, will be regulated by the above law and thereafter operational problems and deficiencies continuously supplemented. Moreover, since the Subcommittee on Industrial Relations of the second Tripartite Commission has already selected the issue of "Public officials' and teachers' basic labour rights" as one of the top ten priorities, the Government will take appropriate measures regarding this issue by accommodating the Tripartite Commission's discussions thereon.

320. Furthermore, since the issues of the revision of the list of essential public services contained in the law, the speeding up of the process of legalizing trade union pluralism at the enterprise level, and the prohibition of the payment of wages to full-time union officials, were also selected as ten priority tasks in the second Tripartite Commission, these issues will be fully discussed at the Commission.

321. Regarding the right of dismissed and unemployed workers to keep their union membership, the Government explains that the first Tripartite Commission had agreed that the Government should submit a proposal to revise the related law to the National Assembly in February 1998, so that the right of unemployed workers to join trade unions at the industry-wide or regional level would be recognized. The Government submitted a bill recognizing the right of unemployed workers to join non-enterprise level trade unions, but the law was not enacted by the National Assembly for the reason that the scope and qualifications of the unemployed were not sufficiently scrutinized. Therefore the National Assembly decided to discuss the matter in forthcoming sessions. As the second Tripartite Commission has already identified this matter as one of its ten priority tasks, it will have in-depth discussions on this matter.

322. With regard to the issue of the repeal of the requirement, contained in the law, to notify the identity of third parties to the Ministry of Labour, the Government points out that the labour sector is not taking issue with this matter. Therefore, this issue is expected to be discussed in the Tripartite Commission in future, if necessary.

323. Finally, concerning the registration of the KCTU, the Government contends that the KCTU can be registered as a legitimate entity any time if it fulfils the legal requirements. In any event, the KCTU is actively engaged in labour activities as a confederation of trade unions. It is participating in the first and second Tripartite Commissions as one of the representatives of labour.

324. Regarding the factual aspects of this case, the Government turns to the issue of the remaining charges pending against Mr. Kwon Young-Kil, former President of the KCTU. It indicates that the Ministry of Justice is going to drop the charges for violation of the related provisions of the Law on Prohibiting the Collection of Contributions, which was judged to be unconstitutional by the Constitutional Court.

325. In its more recent communication dated 23 October 1998, the Government first of all turns to the KCTU's allegation that employment adjustment for urgent managerial reasons was carried out for the purpose of disrupting the Hyundai Motors' Trade Union, and that there was a lack of government supervision on such practice. The Government points out that related legislation prescribes that where employment adjustment is inevitable for managerial reasons, an employer shall select the workers to be laid off based on reasonable and fair standards. In the process of selecting workers to be dismissed, where there is any unfair labour practice, namely placing a worker on the redundancy list on grounds of this worker's union activities, the worker can file a relief request to the Labour Relations Commission in accordance with the related law. With regard to the Hyundai Motors' redundancy notice in July 1998, labour and management agreed on the following on 24 August 1998: (i) the management would reduce the number of workers to be dismissed from the originally planned 1,538 to 277; (ii) if there was a dispute on whether the workers to be dismissed had been selected by reasonable and fair criteria, that dispute should be settled by legal procedures. Finally, so far, thanks to the above-mentioned agreement, there had been no problem raised by labour regarding this case.

326. With regard to the KCTU's allegation that 57 unionists who participated in legitimate union activities were imprisoned, and that arrest warrants were issued for 13 workers from May to July 1998, the Government states the following. Six workers, Kim Myong-ho, Lee Hee, Kim Kwang-ho, Kim Seong-su, Choi Jong-ho and Park Bok-kwan, were not imprisoned, nor were any arrest warrants issued for them. Judicial proceedings are being undertaken by the competent authorities for other workers who are suspected of violating the Penal Code by committing violent actions such as attacking policemen and managerial employees, occupying and setting on fire rail tracks, and interfering with banking and business operations.

327. With regard to the allegation that the dismissal of two public servants (Lee Seung-Chan, from the Yongsan Ku Office, and Kim Dong-Il, from the Mokpo Tax Office branch) constitutes an infringement of the right of public servants to organize, the Government states that these two public servants were dismissed according to legitimate procedures as the competent disciplinary commitees had determined that the two persons had violated the current service regulations of public officials. On 3 July 1998 Kim Dong-Il filed a request against this action to the Deliberation Committee in the Ministry of Government Administration and Home Affairs; the Committee rejected Kim Dong-Il's request on 24 August. Lee Seung-Chan also took similar action, and this case is now pending for deliberation scheduled for November 1998.

328. Regarding the issue of an amnesty by the President for those trade unionists detained as a result of their trade union activities, the Government indicates that all the 29 unionists who had been detained were released. Seven unionists were freed by the special amnesty on 13 March 1998; 11 had their sentences suspended; nine were released on bail; one had the indictment suspended; and one completed his prison term.

D. The Committee's conclusions

329. During its previous examination of this case, the Committee had recalled that while the Trade Union and Labour Relations Adjustment Act (TULRAA) which was enacted on 13 March 1997 contained a number of amendments which constituted progress towards acceptance of its previous recommendations, certain provisions that the Committee had deemed to be contrary to freedom of association principles had not been amended. In this respect, the Committee had noted with interest that a Tripartite Commission composed of representatives of the Government, business and the two central trade union organizations (FKTU and KCTU), as well as of Members of Parliament belonging to other political parties, had been established on 15 January 1998 to deal with a series of reforms on labour-related issues, including those relating to freedom of association, and that these reforms, if implemented, would necessitate the corresponding amendments to the TULRAA. The Committee notes the Government's statement that a second Tripartite Commission with more or less the same composition and mandate as the first, was established in June 1998. One of this Commission's subcommittees, the Subcommittee on Industrial Relations, is mandated to deal with a series of issues including those raised by the Committee during its previous examination of this case.

Allegations of a legislative nature

330. The Committee recalls that the issues of a legislative nature that were raised during its previous examination of this case related to the legalization of teachers' unions, the right to organize of public servants, trade union pluralism at the enterprise level, the lifting of the ban on third-party intervention in collective bargaining and industrial disputes, the right to strike in non-essential public services, industrial action in the form of workplace occupations, the payment of wages to full-time union officials, the denial of dismissed and unemployed workers to keep their union membership and the ineligibility of non-members of trade unions to stand for office and the lack of legal status of the KCTU. The Committee reiterates its earlier conclusions in respect of all of the above issues [see 309th Report, paras. 143 to 154]. It firmly hopes that these issues will be resolved as soon as possible within the framework of the second Tripartite Commission in a manner that will ensure full compliance with the Committee's previous recommendations on these issues which were the following:

The Committee requests the Government to keep it informed of the outcome of the deliberations within the second Tripartite Commission on all these issues.

331. As regards the legislative aspects of this case, the Committee requests the Government to provide information on any measures taken to give effect to the Committee's recommendations thereon.

Allegations of a factual nature

332. As regards the situation of Mr. Kwon Young-kil, former President of the KCTU, the Government states that the charges pending against him for violation of the Law on the Collection of Contributions are going to be dropped. The Committee notes with concern, however, that Mr. Kwon still faces charges of violating the Law on Public Assembly and Demonstration and the Traffic Law, and that a criminal charge of intrusion into private premises is still pending against him for the holding of the inaugural congress of the KCTU at Yonsei University on 11 November 1995. The Committee would once again firmly insist that the Government do everything in its power to ensure the dropping of all remaining charges which were brought against Mr. Kwon before the January 1997 strikes as a result of his trade union activities.

333. During its previous examination of this case, the Committee had noted that the new President was seriously considering an amnesty for all those persons detained for violations of labour-related laws [see 309th Report, para. 158]. The Committee now notes the Government's reply that all the 29 unionists who had been detained were released. Seven were released by the special amnesty on 13 March 1998; 11 had their sentences suspended; nine were released on bail; one had the indictment suspended; and one had completed his prison term.

334. As regards the KCTU's more recent allegation that in July 1998, the management of Hyundai Motors Co. delivered termination notices to some 1,600 workers including elected union officials as part of a plan to destroy the Hyundai Motors Workers' Union, an affiliate of the KCTU, the Government states that originally management had planned to dismiss 1,538 workers as part of a redundancy plan. However, following an agreement reached between the union and management, the number of workers to be laid off was subsequently reduced to 277. The Committee nevertheless notes that the Government does not refute the allegation that elected union officials including 15 full-time union officers, 89 elected union delegates and 11 union branch officers were on the management's original list of workers to be laid off. In this regard, the Committee would remind the Government that in cases of staff reductions, it has drawn attention to the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Article 6(2)(f)) [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 960].

335. With regard to the KCTU's allegations that 57 trade union leaders were arrested and imprisoned for legitimate trade union activities and that arrest warrants were issued for 13 other KCTU leaders for the same activities, the Committee notes the Government's statement that in fact 53 KCTU leaders have been imprisoned and arrest warrants have been issued against 11 others. The Committee also notes that the reasons given by the KCTU and the Government respectively for these detentions and arrest warrants widely differ. According to the KCTU, these arrests and detentions took place for participation in a May Day rally and two general strikes organized by the KCTU which had complied with all the procedural conditions prescribed by the law. The Government however contends that the trade union leaders concerned were either imprisoned or had arrest warrants issued against them for having committed criminal offences in violation of the Penal Code. The Committee notes that the KCTU does not deny that clashes did occur during the May Day rally. It insists however that these clashes were provoked by the riot police who tried to prevent the march from taking place by repeatedly firing tear gas into the crowd. A number of trade unionists who reacted to the police violence were subsequently arrested. The KCTU nevertheless points out that the Government later committed itself to withdraw all charges against persons either arrested or wanted for arrest for the May Day rally in an agreement reached between the KCTU and government representatives on 5 June 1998.

336. The Committee observes that the Government has not provided any information on this agreement of 5 June 1998 and would therefore ask it to do so. The Committee further observes that the Government has not provided any specific information concerning the police intervention during the May Day rally. The Committee recalls in this respect that trade union rights include the right to hold public demonstrations. 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, op.cit., para. 137].

337. The Committee must express its deep concern over the fact that trade union leaders and members are still detained or on trial, it would appear, for activities linked to collective labour disputes. The Committee is convinced that it will not be possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are the subject of detentions and judicial proceedings. The Committee considers that, in the new climate of tripartism prevailing in the country, it would be particularly appropriate for the authorities to pursue measures which would allow for the building of a new industrial relations system based on a climate of confidence. The Committee therefore urges the Government to take the appropriate measures so that the persons detained or on trial or for whom arrest warrants have been issued as a result of their trade union activities are released or that the charges brought against them are dropped or that the arrest warrants are withdrawn. In the case of persons charged with violence or assault, the Committee asks the Government to ensure that these charges are dealt with as soon as possible. It requests the Government to provide information concerning measures taken on all these points.

338. With regard to the alleged dismissal of two public servants, Lee Seung-Chan and Kim Dong-Il, for their involvement in the "Public Servants' Work Council Preparation Committee", a body responsible for organizing preparatory activities for the establishment of public servants' works councils, the Government confirms that these two officials were indeed dismissed by the competent disciplinary committees for having violated the current service regulations of public servants. The Committee must express its concern over these developments since it has reminded the Government on several occasions -- first, in Case No. 1629 [see 286th Report, paras. 558-575; 291st Report, paras. 416-426; and 294th Report, paras. 259-275] and then in Case No. 1865 [see 304th Report, paras. 242-254; 306th Report, paras. 295-346; 307th Report, paras. 177-236; and 309th Report, paras. 120-160] -- that current legislation governing public servants which denies them the right to organize is contrary to freedom of association principles. Moreover, while noting the Government's statement that the Act on the Establishment and Operation of Workplace Associations for Public Officials, scheduled to be effective from 1 January 1999, will ensure the right of association of public servants, the Committee fails to see how these work councils can become truly operational on that date if public servants are prohibited from providing and/or receiving information and assistance for the establishment and operation of such work councils within the framework of the Preparation Committee. Regretting this serious setback for the recognition of the right to associate (and gradually of the right to unionize) of public servants, the Committee urges the Government to take the necessary measures to ensure that these two public servants, Lee Seung-Chan and Kim Dong-Il, are immediately reinstated in their jobs. It requests the Government to keep it informed of progress made in this regard.

The Committee's recommendations

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

Appendix 1

Hyundai Motors Workers' Union leaders
served with termination notice

Full-time union officers (15)

Elected union delegates/shop stewards (89)

1. Logistical Support Division

2. Passenger Car Division I

3. Passenger Car Division II

4. Passenger Car Division III

5. Commercial Vehicle Division IV

6. Engine-Gear Division

7. Material Division

8. Centre Division

9. General Works Division

10. Organic Instruments Division

11. Seat Division

Union Branch Officers (11)

1. Asan Plant Branch
 

    PARK Min-kyu

    Director, Organising Department

    KIM Hyung-seok

    Chief Delegate/Shop steward

    KIM Seung-ki

 

    KIM II-shin

 

 

2. Jeunju Plant Branch
 

    JEUNG Hyuk

    Auditor

    SEO Jeung-won

    Chief Delegate/Shop steward

    SEONG Jong-min

 

    KANG Mahn-seok

 

    KIM Dong-kyu

 

    KANG Myung-ho

 

    JEONG II-shik

 

 

Former Presidents of the Union (2)

Appendix 2

Imprisoned KCTU leaders and major leaders
wanted for arrest

Imprisoned KCTU leaders following the May Day rally and two general strikes

1.

KOH Young-ju

KCTU General Secretary

2.

PARK Joon-seok

General Secretary, KCTU Ulsan Regional Council

(Vice-President, KMWF-Hyundai Precision Industry TU)

3.

CHOI Jae-ki

General Secretary, KCTU Masan-Changwon Regional Council

4.

CHOI Yong-kook

Chairperson, Pusan-Yangsan Regional Council, KMWF

5.

JEONG Yun-seup

Chairperson, KMWF Incheon-Pucheon Regional Council

6.

KIM Myong-ho

Director, Policy Dept. KMWF Ulsan-Regional Council

7.

LEE Hee

Director, Publicity Dept. KMWF Ulsan Regional Council

8.

KOOK Hyun-jong

Director, Organising Dept. KMWF-Lotte Machine Engineering TU

9.

KOH Hwa-sook

President, KMWF-KocomHanse TU

10.

KIM Sook-hee

Director, Education Dept. KMWF-KocomHanse TU

11.

KIM Jong-hyun

President, KMVVF-Hanyoung Industry TU

12.

KIM Sang-ryul

General Secretary, KMWF-Hanyoung Industry TU

13.

KIM Hee-dae

Director, Organising Dept. KMWF-Hanyoung Industry TU

14.

KIM Kwang-ho

Member, KMWF-Hanyoung Industry TU

15.

SOHN Nak-koo

President, KMWF-Koryo Machinery TU

16.

NAM Tak-kyu

Director, Industrial Action Dept., KMWF-Kia Motors TU

17.

BYUN Hee-won

Member, KMWF-Kia Motors TU

18.

YOON Young-kyu

Member, KMWF-Kia Motors TU

19.

KIM Hyung-ryul

Member, KMWF-Hyundai Motors TU

20.

KIM Hyung-joon

Member, KMWF-Hyundai Motors TU

21.

RYU Ki-joon

Member, KMWF-Hyundai Motors TU

22.

KIM Dong-kyu

Member, KMWF-Hyundai Motors TU

23.

KOO Ja-young

Member, KMWF-Hyundai Motors TU

24.

LEE Byung-nam

Member, KMWF-Hyundai Motors TU

25.

LEE Dong-hee

Member, KMWF-Hyundai Motors TU

26.

KIM Seong-su

Member, KMWF-Hyundai Motors TU

27.

JI Jin-seung

Member, KMWF-Hyundai Motors TU

28.

RAH Seong-hoon

Member, KMWF-Hyundai Motors TU

29.

SUH Hae-cheol

First Vice-President, KMWF-Incheon Iron and Steel TU

30.

AHN Yeun-kook

Member, KMWF-Mando Machinery TU

31.

YUH Kyu-yeup

Chairperson, KFPSU-KTTU Daegu Regional

32.

KIM Shi-hwan

Director, Organising Dept. KFPSU-KTTU

33.

SHIN Kyu-shik

Director, Organising Dept. KFPSU-KTTU Seoul Regional

34.

SHIN Myong-hee

Chairperson, KFPSU-KTTU 114 Service Division

35.

AHN Sang-ha

President, KFTCU-Taekwang Daehan Chemical Textile TU

36.

SHIN Yonq-joon

Director, Policy Dept. KFTCU-Taekwang Daehan CT TU

37.

SONG Kyo-soon

General Secretary. KFTCU-Taekwang Daehan CT TU

38.

PARK Soo-gurl

Director, Gen. Affairs, KFTCU-Taekwang Daehan CT TU

39.

URM Joon-seup

Director, Organising Dept. KFTCU-Taekwang Daehan CT TU

40.

CHOI Sang-berm

Director, Education Dept- KFTCU-Taekwang Daehan CT TU

41.

LEE Jang-hwan

Member, KOFU-Donghwa Bank TU

42.

KIM Min-ho

Member, KOFU-Donghwa Bank TU

43.

HUH Min

Member, KOFU-Donghwa Bank TU

44.

CHO Yong-won

Member, KOFU-Donghwa. Bank TU

45.

LEE Do-seuk

Member, KOFU-Donghwa Bank TU

46.

KIM Hyun-ju

Member, KOFU-Donghwa Bank TU

47.

CHO Soo-hee

Chairperson, KFCU-LG Chernical Cheongju Regional

48.

JOO Myong-kook

Director, Organising Dept. KFCU-LC Chemical Cheongju Regional

49.

KIM Tae-jin

President, KFSRLU-Pusan Urban Transit TU

50.

KIM Koo-shik

Secretary, KFSRLU-Pusan Urban Transit TU Station Division

51.

OH Young-han

Secretary, KFSRLU-Pusan Urban Transit TU Technology Division

52.

PARK Se-hyun

Secretary, KFSRLU-Pusan Urban,Transit TU Drivers Division

53.

JEUNG Jae-hoon

Secretary, KFSRLU-Pusan Urban Transit TU Maintenance Division

54.

JEUNG Cheol

Secretary, KFSRLU-Pusan UT TU Nopo Station Branch

55.

PARK Yang-soo

Secretary, KFSRLU-Pusan UT TU Shinpyung Station Branch

56.

PARK Hyun-woo

Director, Education Dept. Pusan UT TU Station Division

57.

AHN Sam-ryul

Delegate (shop steward)

 

KCTU leaders wanted for arrest (warrants of arrest
issued) or indicted without detention

YOO Deuk-sang

First Vice-President, KCTU

DAN Byung-ho

Vice President, KCTU (President, KMWF)

KIM Ho-seun

President, KFPSU (President KTTU)

HONG Yuh-pyo

Chairperson, KCTU Masan-Changwon Regional Council

KIM Kwang-shik

President, KMWF-Hyundai Motors Workers' Union

CHO Cheol-woo

President, KMWF-Tongil Heavy Industry Workers' Union

LEE Kyung-soo

President, KMWF-Daelim Motors Workers' Union

CHOI Jong-ho

President, KMWF-Hyundai Precision Industry Workers' Union

KOO Choong-il

President, KFPSU-Korea Mint Corp. Workers' Union

CHO Hee-mahn

President, KFPSU-Nat'l. Council of Regional Medical Insurance Coop TU

PARK Bok-kwan

President, KFCTU-Hyundai Heavy Equipment Workers Union

PARK Pyo-kyun

Exec. Director, Organizing Dept. KCTU

CHEUNG Seonghee

Exec. Director, Solidarity Outreach Dept. KCTU

 

All together, more than 200 KCTU trade unionists and leaders have been either served with arrest warrants or charged without detention.

Abbreviations

KCTU

Korean Confederation of Trade Unions

KMWF

Korean Metal Workers' Federation

KFPSU

Korean Federation of Public Sector Unions

KTTU

Korea Telecom Trade Union

KFTCU

Korean Federation of Textile-Chemical Workers Unions

KOFU

Korean Federation of Financial Institute Trade Unions

KFCU

Korean Federation of Chemical Workers Unions

KFSRLU

Korean Federation of Subway and Railway Labour Unions

KFCTU

Korean Federation of Construction Trade Unions

 

Case No. 1966

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

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

Allegations: Acts of anti-union discrimination, withholding of trade union dues, interference by the employer, violation of correspondence

340. The complaint to which this case refers is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 11 May 1998. ICFTU sent additional information in a letter of 23 July 1998. The Government sent its observations in a letter of 20 August 1998.

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

A. The complainant's allegations

342. In its communication of 11 May 1998, the International Confederation of Free Trade Unions (ICFTU) stated that for several years trade union organizations have been progressively eliminated, leaving workers seriously unprotected. The ICFTU states that this has occurred in several companies, such as, for example, Fertilizantes de CentroamUrica SA (FERTICA), where the collective agreement in force was broken and the entire trade union leadership in the company was dismissed. The ICFTU adds that, with regard to the acts committed by FERTICA, it entered a complaint against the Government of Costa Rica in 1996 (Case No. 1879), which was examined by the Committee at its meeting in November 1996 [see 305th Report, Case No. 1879 (Costa Rica), paras. 183 to 205]. The complainant organization states that on that occasion the Committee requested the Government to take measures with a view to mediating between the parties to reach a quick settlement of the dispute between the FERTICA SA Workers' Association and the company through negotiation, taking fully into account the provisions of Conventions Nos.98 and 135, ratified by Costa Rica, and in particular to reinstate all those dismissed because of their membership of official position in the trade union, and to fulfil the collective agreement. The ICFTU alleges that the Committee's recommendations were held in contempt and ignored by the Government of Costa Rica and FERTICA SA.

343. The complainant organization states that, in addition to failing to comply with the Committee's recommendations in this case, FERTICA SA committed further breaches of trade union rights. The ICFTU alleges the following specific anti-union acts:

B. The Government's reply

344. In its communication of 20 August 1998, the Government states, concerning the allegations on the failure to fulfil the recommendations of the Committee on Freedom of Association in Case No. 1879 and the new matters contained in Case No. 1966, that it regrets the position adopted by the complainant organization in pursuing Case No. 1879 before the Committee on Freedom of Association, at a time of a change in government, since it had already received a final report through that body and the national authorities were duly attending to the matter. According to the Government, from a simple reading of the supposed new matters contained in the action under examination, it is clearly evident that the cause, subject and parties are similar to Case No. 1879. In this situation of inconsistencies and subject to reporting to the control body on the real truth of the matter, the Government maintains that the case has already been decided since the Committee on Freedom of Association had formulated definitive conclusions and the case was therefore closed.

345. The Government states that as a State governed by the rule of law, it is known as a model of democracy and peace, since it has made substantive changes in the course of time which have eliminated, among other things, legal obstacles to the full enjoyment of workers' rights. Efforts are being made in Costa Rica to guarantee both the free enjoyment of fundamental human rights and internationally recognized workers' rights.

346. The Government states that it is unaware of the reasons why the trade union sector, which is fully represented in the National Unity Forum (established by decision of the president) has not fulfilled the commitments to dialogue made before this body. Indeed, no case comparable to the one submitted to the Committee, even though a decided matter, has been submitted for consideration and solution, according to their records, to the Unity Forum or the Ministry of Labour and Social Security. The Government adds that it should be emphasized that the Ministry of Labour and Social Security, since commencing its functions on 8 May 1998, has dealt with all matters of which it was informed of a social and labour character, and that the administrative authorities have remained open for dialogue and collaboration with all sectors of society in seeking social harmony. According to the Government, both Case No. 1879 and the supposed "new matters" have been dealt with in the framework of the rule of law, faithfully observing the current legal order and employment practice, which is the reason why it cannot reasonably be asserted that workers' rights are being violated or not respected.

347. With regard to the alleged failure to fulfil the recommendations of the Committee in relation to Case No. 1879, the Government reports that the authorities meticulously and diligently attended to the recommendations contained in the 305th Report of the Committee on Freedom of Association. Specifically, on the recommendation to take new measures to mediate between the parties to bring about a rapid settlement of the dispute between the FERTICA SA Workers' Association and the company, through negotiation, taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica; and in particular the reinstatement of those dismissed for trade union membership or office, as well as fulfilment of the collective agreement, the Government states that once the Ministry of Labour had determined the existence of anti-union practices and the violation of the collective agreement by the respondent company, the matter passed to the courts, with a view to a definitive settlement, with an application for sanctions against the company, compensation for the damages caused, as well as immediate reinstatement of the persons concerned, payment of salary arrears, and restitution of the violated rights. The Government adds that, under Costa Rican law, the courts are responsible for ordering the reinstatement of the workers concerned. In the present case, the Government is playing the role of mediator, in accordance with the Committee's recommendations and urging the parties to comply, as shown by the conciliatory measures taken in the above-mentioned office, but it is not permitted to impose measures that are a matter for the courts.

348. The Government states that it supports the principles of the ILO and in order to continue to cooperate to resolve this matter, the Executive Power, in its letter No. DM-006-97 of 6 January 1997, instructed the Department of Labour Affairs in the Ministry of Labour and Social Security to take such measures as necessary to bring the parties to conciliation and bring about the reinstatement of those dismissed because of their trade union membership, as well as fulfilment of the collective agreement, taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica. Pursuant to the foregoing, a meeting was held in the above-mentioned Minister's office on 9 January 1997, with the participation of representatives of the Ministry of Labour and Social Security and the workers. According to the minutes, even though the employers' side was not present at this first meeting, it sent to this office a letter No. GG-013-97, dated 8 January of that year, requesting a new date for the hearing, to allow them time to prepare their case. It is clear that this request does not contain the slightest wish to refuse, let alone fail to attend, the above meeting. Quite the contrary, they are desirous of clarifying some issues central to the matter and request a new date to be fixed for the hearing. The new hearing was also held in the Minister's office, and the employers' side, represented by the managing director and the trade union, after expressing their appreciation of the Minister's efforts to mediate in the matter, set about finding a solution. The Government states that the diligent steps taken by the administrative authorities throughout the proceedings are yet again clear.

349. According to the Government, the National Labour Inspectorate was the principal agency legally responsible for investigating and reporting, through the appropriate legal channels, most of the illegal acts under examination. However, the complainant organization claims to assert its rights in two ways, nationally and internationally, without having exhausted the applicable legal remedies, and clearly unaware of the rule of law by which their country is governed.

350. The Government points out that many of the matters under examination have been individually examined through administrative, judicial and international proceedings, administrative proceedings alone, or are apparently heard only in international forums, as is the case with the complaint under consideration, without having exhausted the dispute settlement mechanisms available under Costa Rican law. The Government states that effectively, in Case No. 1879, the Committee on Freedom of Association already considered and decided on the process provided by the competent national authorities concerning the complaints entered by the ATFe in August, September and October 1995, and the report submitted for the purpose by the inspectors assigned by the National Labour Inspectorate in the Ministry of Labour and Social Security, dated 20 November 1995, and the applicable judicial proceedings taken by the administrative authorities against FERTICA, dated 30 August 1996. In this respect, the Government gives a brief review of the main proceedings in the courts concerning the matter in question. The Government reports in detail on the criminal proceedings against FERTICA SA for breach of the labour and social security laws, and action which finally expired.

351. The Government states that on 5 September 1996, the ATFe submitted to the National Labour Inspectorate a new complaint against FERTICA SA for alleged unfair labour practices, and that the inspector assigned to investigate the alleged offence against the labour and social security laws in FERTICA SA, stated in her report that:

(1) on 8 April 1996, employees of the company who were in the guard hut refused to accept from Cortel employees the telegrams sent by ATFe, convening union members working in the company to a meeting; (2) according to the evidence of witnesses, it can be seen that FERTICA facilitated the participation of ATFe members in a meeting to elect a new executive board, despite the fact that there was already an executive board, registered with the department of social organizations and with legal personality; (3) according to statements by the company's officials, they state that for FERTICA the new board is the legitimate one and thus they pay cheques for trade union dues and other items; (4) it was found that FERTICA did not recognize the current executive board of the ATFe, with legal personality and represented by Mr. Marcos Guzmán Rodríguez as secretary-general, although it had been informed in writing on a number of occasions; (5) it was found that although the leadership of the legally constituted social organization requested the company to pay to it the cheques for union dues, it did not do so, sending the cheques to another group that was not legally registered; (6) because of the persistent situation concerning the acceptance of the legal executive board, the ATFe union found itself affected by lack of income and recognition and it was impossible for it to fulfil its legal obligations such as to submit reports on its financial activities. Consequently, on conclusion of the investigation and taking into consideration the documentary evidence and the statements made by the parties, we are drawn to the conclusion that FERTICA has engaged in unfair practices in facilitating the creating of another executive board parallel to the legally constituted one. In addition, the unjustified refusal to negotiate collectively in accordance with the legally established procedures. Lastly, withholding the deduction of the normal dues of members and handing them over to a group or executive board that is not legally established ...

(The Government attaches a copy of the administrative investigation to its reply.)

352. The Government states that this report was transmitted to both parties and that FERTICA SA appealed against it and sought its revocation. By a decision of 3 November 1996, the National Labour Inspectorate resolved that "in accordance with constitutional decision No. 4298-97 of 16h.45, of 23 July 1997, under which, erga omnes, and following examination of the report by the labour inspector, the complaint against the respondent for unfair labour practices (failure to deduct union dues and obstruct union activity) is upheld". The representative of FERTICA SA appealed against this decision. The National Labour Inspectorate, in its decision of December 1997, refused the appeal and remedies of revocation. The company's representative entered an application for absolute nullity of the decision and the whole proceedings, and sought revocation of both decisions, reiterating its previous arguments. By its decision of 5 December 1997, the National Labour Inspectorate referred to higher authority the decision concerning the above-mentioned nullities and revocations. In a decision No. 077-98 of 23 March 1998, the office of the Minister of Labour and Social Security refused the appeal and application for nullity entered by the employer's representative in respect of resolutions Nos. DNI-1894-97 and DNI-2095-97 above by the National Labour Inspectorate.

353. The Government states the following in relation to the supposed "new matters" alleged:

354. Lastly, the Government declares that it has shown that the complainant organization is clearly unaware that the State is governed by the rule of law, and that administrative and judicial dispute settlement procedures are guaranteed under the national judicial system. In any case, the Government holds that it has demonstrated its constant search for solutions to achieve social peace through dialogue and unity, wholly refuting the complaint entered by the complainants with regard to the supposed failure to comply with the recommendations made by the Committee on Freedom of Association in Case No. 1879, and the supposed existence of new facts, which may possibly exist, but of which the Government in its undefended position, is not aware, because of the dual track, national and international, used by the complainants to air their concerns.

C. The Committee's conclusions

355. The Committee notes that in the present case the complainant organization alleges that the Government has not implemented the recommendations made by the Committee when examining an earlier complaint against the Government of Costa Rica alleging anti-union dismissals and violation of the collective agreement in the company, FERTICA SA [see 305th Report, Case No. 1879, paras. 183 to 205]. The Committee further notes that the complainant organization alleges new acts in violation of trade union rights at FERTICA SA, whereby the company's management: (1) prevents the entry of ATFe union leaders to the company's premises and prohibits them from holding trade union demonstrations, meetings and assemblies; (2) removed the trade union noticeboards and notices and prevented the publication of circulars, flyers and meeting notices; (3) prevented the delivery of telegrams addressed to ATFe members; (4) refuses to receive communications on the formation of the ATFe executive board; (5) dismissed striking workers despite the fact that the judicial authorities ordered the dismissals not to be carried out; (6) refuses to hand over to the ATFe its members' union dues; (7) promoted the constitution of an executive board parallel to that of the ATFe and a trade union organization called the Sindicato de Trabajadores de FERTICA (SITRAFER); (8) drew up blacklists containing the names of trade union members; and (9) caused the disappearance of the workers' pension fund that had been set up under the collective agreement. Finally, the Committee notes that the complainant organization alleges that the administrative authorities are not dealing with an appeal concerning the application of the collective agreement in FERTICA SA.

Failure to implement the recommendations
of the Committee in Case No. 1879

356. Concerning the alleged failure to implement the recommendations arising in Case No. 1879, the Committee recalls that on that occasion, after deploring various unfair practices and anti-union acts (which had been reported by the Labour Inspectorate), it requested the Government to take "new measures to mediate between the parties to bring about a rapid resolution of the dispute between the FERTICA SA Workers' Association and the company through negotiation and taking fully into account the provisions of Conventions Nos. 98 and 135, ratified by Costa Rica. The Committee requested in particular that those dismissed because of their trade union office or membership should be reinstated (all the members of the executive board of the workers' association and 265 members had been dismissed) and that the collective agreement should be implemented [see 305th Report, para. 205(a)].

357. The Committee notes that the Government states in this respect that it thoroughly and diligently followed the Committee's recommendations, and took the following measures for the purpose: (i) after investigating the anti-union practices and the violation of the collective agreement by the impugned company, it passed the matter to the judicial authorities, requesting the imposition of sanctions on the company and compensation for the damages caused, as well as the immediate reinstatement of the workers concerned, payment of salary arrears and restitution of the violated rights (according to the Government, under Costa Rican law, it is the judicial authorities that are responsible for ordering the reinstatement of the workers concerned); and (ii) the Executive Power instructed the Department of Labour Affairs in the Ministry of Labour and Social Security to take the necessary steps to urge the parties to come to conciliation, seek the reinstatement of the dismissed workers and implementation of the collective agreement, and in that context, it invited the parties to a meeting to seek a solution to the dispute.

358. In this respect, the Committee notes that despite the efforts by the administrative authorities to bring the parties to the dispute together, none of the members of the executive board of the ATFe or the 265 members dismissed for trade union activities in September 1995 [see 305th Report, para. 200], was reinstated, and the collective labour agreement has not been implemented, and the proceedings against the company have not had any effect; furthermore the judicial proceedings to restore the violated rights have not reached a conclusion. In these circumstances, the Committee urges the Government to take new measures to implement without delay the conclusions and recommendations it made at its meeting of November 1996 and to keep it informed in this regard. In addition, the Committee must once again point out that it is presented with a case of dilatoriness in the administration of justice given that the matters complained of by the complainant date from 1995. Consequently, the Committee recalls, as it did in its first examination of these allegations [see 305th Report, Case No. 1879, para. 202], that proceedings relating to matters of anti-union discrimination, in violation of Convention No. 98, should be examined promptly, so that the necessary corrective measures can be really effective; excessive delay in dealing with anti-union discrimination cases and, in particular, the long delay in deciding proceedings for the reinstatement of dismissed union leaders amounts to a denial of justice and thus a denial of the union rights of those affected. On that occasion, the Committee also expressed its concern at the tardiness and inefficiency of the proceedings in a large number of cases and requested the Government to take the measures necessary to ensure the speedy conduct of proceedings.

Allegations concerning new violations of trade
union rights in the company FERTICA SA

359. Concerning the new acts in violation of union rights alleged to have been committed by the company FERTICA SA since the examination of Case No. 1879, the Committee notes that the complainant organization and the Government basically agree on the existence of such acts (as inferred from the reply of the Government to which is annexed a copy of an administrative investigation report carried out by the National Labour Inspectorate, which found that FERTICA SA had engaged in unfair practices, in that: (1) company employees refused to accept telegrams sent by the ATFe to convene an assembly of its members; (2) it did not recognize the legitimate ATFe executive board; (3) it facilitated the creation of another executive board parallel to the above-mentioned legitimate board; and (4) it unjustly refused to participate in collective bargaining pursuant to and in compliance with the established legal procedures.

360. The Committee deeply deplores that the relations between the trade union and the company have deteriorated still further, once again giving rise to anti-union practices. In these circumstances, the Committee urges the Government to take the measures necessary to ensure recognition of the legitimate executive board of the ATFe and to ensure the transfer to it of all its members' union dues. The Committee further draws to the attention of the Government the intervention by an employer to promote the constitution of the executive board of a trade union, and interference with its correspondence, are acts which constitute a grave violation of the principles of freedom of association, and requests the Government to take measures to ensure that such acts are not repeated in the future and to guarantee the union rights of the legitimate board.

361. With regard to the allegation on the failure by the administrative authorities to decide the appeal on the application of the collective agreement in FERTICA SA, the Committee notes that the Government states that: (i) in August 1996, the ATFe submitted to the Ministry of Labour and Social Security a copy of the denunciation with an application to extend the collective agreement for purposes of registration. The Committee is aware that the term "registration" may have different connotations in different countries; however, it stresses that the approval of a collective agreement by the authorities should be limited to a control of the respect of the minimum legal standards required by the legislation; (ii) having conducted conciliation proceedings between the parties and faced with the company's lack of interest, the Department of Labour Relations refused the union's application on 7 May 1997; (iii) later, on 21 May 1997, the same department issued a decision reversing the refusal, and held that the collective agreement was extended; (iv) the company sought the remedies of revocation, appeal and nullity of the decision, and (v) on 23 March 1998, the administrative authorities rejected the company's applications, and the Ministry of Labour confirmed the extension of the collective agreement signed on 15 September 1994. In these circumstances, the Committee requests the Government to ensure that the company FERTICA SA honours the collective agreement.

362. The Committee further notes that it is not shown in the above-mentioned Labour Inspectorate report that there are blacklists with the names of workers who have participated in strikes or other trade union activities, and neither was it proved that the company's representatives were responsible for removing and destroying notices and communications issued and affixed by the ATFe union in the company. Finally, the Committee notes that FERTICA SA entered several administrative appeals against the report of the Labour Inspectorate, and that these were refused.

363. With regard to the other allegations made, the Committee notes the following:

Under these circumstances, the Committee regrets that the observations submitted by the Government concerning these allegations are too general, and requests it to take the measures necessary to undertake detailed investigations without delay to confirm the truth of these allegations. The Committee further requests the Government to keep it informed of the result of these investigations.

364. Finally, concerning the Government's assertion to the effect that the complainants should have exhausted national procedures, the Committee recalls that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.

The Committee's recommendations

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

Case No. 1954

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

Complaint against the Government of Côte d'Ivoire
presented by
the Confederation of Free Trade Unions
of Côte d'Ivoire, Dignité

Allegations: Infringement of the right to demonstrate and
of the inviolability of trade union premises, questioning of
trade unionists, mass dismissals of workers and dismissals
of staff delegates following strike action

366. In a communication dated 19 February 1998, the Confederation of Free Trade Unions of Côte d'Ivoire, Dignité, submitted a complaint of violations of the right to organize against the Government of Côte d'Ivoire.

367. The Government sent its comments and observations on this complaint in a communication dated 26 May 1998.

368. Côte d'Ivoire 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

369. In a communication dated 19 February 1998, the complainant confederation Dignité alleges violations of Conventions Nos. 87 and 98 by the Government of Côte d'Ivoire. According to the complainant, the violations relate to attacks on the headquarters of Dignité (broken windows, occupation of the premises by the police for a week); infringements of the right to exercise trade union activities, particularly of the right to demonstrate; ill-treatment and physical violence suffered by two employees of the Abidjan Ship Repair and Industrial Work Enterprise (CARENA) -- Mr. Blaise Tapé Blé, injured during a beating, and Mr. Laurent Djoro, slightly injured; and questioning of workers of the CARENA enterprise, namely Mr. Doh Kouassi, Mr. Kafalo Coulibaly, Mr. Alphonse Sehi, Mr. Blaize Goué Assomoi, Mr. Bi Tené and Mrs. Coulibaly Nagata. According to the allegations, these workers were arrested on 4 February 1998, subjected to ill-treatment and later released at 11 p.m.

370. According to the complainant, these violations followed a peaceful protest march called by workers of the CARENA enterprise on 4 February 1998 to draw attention to the authorities' passive attitude with regard to finding a solution to the collective dispute going on between them and the enterprise's management. To be sure to get to the demonstration early, the workers decided to spend the night at the headquarters of Dignité, to which they were affiliated. In an attempt to stop the march being held, national police units under the command of a police superintendent from the third district of Abidjan, stormed the confederation's premises at 3 a.m. using truncheons and tear-gas grenades to break the French windows, seeking at all costs to oust the workers. As well as the damage it caused to the headquarters, the charge seriously injured one person, slightly injuring a number of others. The affiliated workers, together with Mr. Basile Mhan Gahé, the Secretary-General of Dignité and a number of permanent officials, were at the headquarters at the time of the attack. The police continued to occupy the headquarters of Dignité for a week, sending in relief officers when necessary.

371. The complainant described the background to the situation in a memorandum supplemented by annexes. It explained that the CARENA workers went on strike on 5 March 1997 to call for the introduction of the wage scale applicable to shipbuilding and repair instead of that applicable to the mechanical engineering industry. The workers wished to end the wage discrimination they had suffered since 1952, when the enterprise was established. They asked to be treated in the same way as their European colleagues, even if it meant those colleagues receiving an expatriate bonus, which they found fair and reasonable.

372. The workers had taken strike action -- in vain -- to achieve satisfaction on this issue in 1978, 1986, 1990, 1996 and 1997.

373. In December 1996, however, the strike action had culminated in a memorandum of agreement according to which the CARENA enterprise was to be classified in its true sector of activity. The complainant annexes this memorandum of agreement, signed on 20 December 1996 by the Secretary-General of Dignité, the staff delegates and the employer, the general manager of the enterprise, in the presence of the director of the office of the Minister of Employment. In it, the general manager of the CARENA enterprise confirmed that the principal activity of the enterprise was shipbuilding and repair. However, given that the allied trades collective agreement of the Republic of Côte d'Ivoire does not include a branch of activity relating to shipbuilding and repair, the workers requested that the matter be put before the industrial advisory board with a view to its establishment. Following the meeting, it was decided that the advisory board would meet on 15 January 1997 at the latest and that work would resume at 9 a.m. on Monday, 23 December 1996.

374. According to the complainant, this memorandum of agreement went unheeded and was not applied by the employer, whereas the workers did resume their activities on 23 December 1996.

375. The complainant goes on to say that in fact on 14 January 1997 the industrial advisory board held a meeting during which it decided to refer the matter to the Permanent Independent Conciliation Committee (CIPC) made up of the National Committee of Ivorian Employers (CNPI), the General Union Workers of Côte d'Ivoire (UGTCI), the Federation of Autonomous Trade Unions of Côte d'Ivoire (FESACI) and Dignité. The Dignité confederation consistently asked that the case be studied by a joint committee made up of the workers and employers concerned under the supervision of experts from the Ministry of Employment.

376. During the CIPC's first meeting, the permanent secretary of the CIPC, who is the Secretary-General of the employers (CNPI), asked the workers to give him time to seek advice from the regional office of the International Labour Office in Abidjan, in the interests of both the workers and the enterprise.

377. On 26 February 1997, the permanent secretary of the CIPC went in person to the CARENA enterprise where he met the general manager of the enterprise and the staff delegates who were all members of Dignité. He explained to them that the wage scale for shipyards to which the workers aspired was utopian, that it existed nowhere else in the world and that during the first meeting there had been no question of anything other than granting certain advantages to the workers, certainly not a wage scale applicable to shipyards. The workers immediately decided to give notice of a new strike in order to communicate their dissatisfaction to the authorities. The law stipulates that six days' notice must be given before starting a strike to allow employers and the authorities to call the trade union to the negotiating table. However, according to the complainant, neither the employer nor the authorities reacted and, on 5 March 1997, the workers went on a peaceful strike -- each worker occupied his workstation wearing a red headband from 5 to 7 March.

378. On 10 March, the employer commenced a lock-out. He closed the enterprise to workers and called in approximately 100 armed police. He also convened a meeting of staff delegates.

379. The workers refused to allow the staff delegates to attend the meeting as long as the enterprise continued to be occupied by the police and the staff was subject to a lock-out. In their view the matter had nothing to do with the police but was an issue to be dealt with by the employer, and the trade union to which they were affiliated, with the assistance of the Ministry of Employment.

380. On 20 March 1997, the employer posted a memorandum at the enterprise stating that in his view all of the CARENA staff had resigned and giving the names of the 300 dismissed workers. On 24 March, police presence was increased and the workers seated outside the enterprise were driven away with tear-gas grenades, it being the management's intention to bring in subcontracted workers to replace the strikers. Then, according to the complainant, as an expression of solidarity, the workers from the subcontracting enterprise Friedlander refused to replace the strikers. They appealed, on the one hand, to the enterprise to take part in negotiations and, on the other, to the striking workers to be flexible during the negotiations.

381. On 25 and 26 March, the striking workers were once again attacked with tear gas and driven away from the enterprise. On the evening of 26 March they were summoned to the office of the Minister of Employment for a meeting during which the Minister allegedly told them that the Minister of Economy and Finance had confirmed to him that the CARENA enterprise did in fact come under the heading of shipbuilding, that they were right to claim the scale for shipbuilding and repair and that he intended to settle the dispute once and for all on the following day.

382. However, still according to the complainant, at 9 a.m. on 27 March the Minister went to the CARENA enterprise, then at 6 p.m. he summoned all the parties involved, including the UGTCI, the FESACI and the Ivorian employers, to ask the workers to return to work prior to the holding of any negotiations, on the pretext that Côte d'Ivoire was striving to obtain investments, that disputes were going on between African countries over enterprises and that negotiations could not be conducted while an enterprise was shut. The director of CARENA stated that the 14 staff delegates, along with the entire staff, had automatically been dismissed for desertion of duties, with the sole exception of the best technicians. The Secretary-General of Dignité expressed his regret concerning the request to return to work before negotiations had been held and the announcement that the workers and their delegates had been dismissed for desertion of duties. He asked that the issue of salaries, bonuses and allowances according to the new wage scale for shipbuilding and repair be examined, taking into consideration the economic and social situation within the country. According to the complainant, the Minister of Employment then threatened Dignité that he would declare the strike to be a wildcat and illegal one if the activists did not return to work the following day. The UGTCI and the FESACI sided with the Minister concerning the unconditional return to work. The Minister demanded a reply as to whether work would resume by 9 p.m. The Secretary-General of Dignité, however, asked the Minister to extend the deadline until the following day so that the workers could be consulted.

383. On 28 March 1997, the Secretary-General of Dignité received a letter from the Minister of Employment which the complainant attached to its complaint. In it the Minister recognizes, firstly, that the CARENA enterprise is classified in the "building and repair of transport material branch", maintaining that this point corresponds to Dignité's principal claim; secondly, that the matter constitutes an industrial dispute that should be examined by the industrial advisory board, at the request of the Secretary-General of Dignité; thirdly, that the board is convened for 1 April 1997 at 4 p.m. on condition that the striking workers return to work on the agreed day. The letter goes on to say: "Dignité requested an extension of the deadline to consult its rank-and-file members and promised to reply during the morning of 28 March. At midday no reply had been received contrary to assurances given." The Minister insisted on an immediate reply. If he did not receive one, he states in the letter, he would be obliged to instruct the employer, on his request, to resume his usual activities "and the implications of the shortcomings demonstrated by Dignité would then have to be examined in order to establish responsibility". On 29 March 1997, the workers of the CARENA enterprise sent a letter to the Minister of Employment; the complainant attached an extract of the letter to its complaint. In this letter the workers indicate that they find the expression "building and repair of transport material" to be very vague and imprecise. They recall that the memorandum of agreement dated 20 December 1996 made mention of the fact that the director of CARENA had confirmed that its principal activity was shipbuilding and repair. On 3 April 1997, once the employer had obtained the authorization of the Minister of Employment, who had declared the strike to be a wildcat and illegal one and had ordered the dismissal of the 300 workers, all the staff delegates without exception received a letter of dismissal.

384. The complainant adds that on 1 May 1997 the Secretary-General of Dignité raised the problem of the CARENA enterprise with the Prime Minister, who in turn asked the Minister of Employment to put the matter back on the negotiating table in order to find a solution. The conciliation meeting was held at the Ministry of Employment on 1 October 1997. According to the complainant, the employer had resumed business using subcontracted workers. The employer indicated that 200 workers were employed on the site, 80 of whom had recently been recruited to enable him to meet his orders. He proposed reinstating 20 of the 300 dismissed workers. The Secretary-General of Dignité demanded that all the workers dismissed during the strike be reinstated and that the issue of the wage scale be re-examined. After the meeting ended in failure, the complainant organized a solidarity march which was suppressed by the police on 4 February 1998. The aim of the march was to bring this industrial dispute, which has still not been resolved, to the attention of the President of the Republic and the Prime Minister.

B. The Government's reply

385. In its reply the Government retorts that during industrial disputes it has always sought to bring the social partners to the negotiating table in accordance with Conventions Nos. 87 and 98. Therefore, at the very beginning of the CARENA dispute, the Ivorian authorities began negotiations in the hope of finding a solution. Unfortunately, these unceasing calls for conciliation were not well received by the trade union confederation Dignité which claims, nevertheless, to defend the material and moral interests of workers. Dignité also organized a protest march on 4 February 1998 against the enterprise's management and the Ivorian Government. Far from being peaceful, the march was an incitement to social unrest as witnessed by declarations made by the confederation both before and after the march.

386. The Government recalls that in a previous case a so-called "peaceful" strike organized by workers affiliated to the Dignité confederation resulted in an enterprise executive becoming permanently disabled after losing an eye. Likewise, a number of persons were seriously injured at Irho-Lamé following premeditated aggression by workers affiliated to Dignité against colleagues who had turned up for work. In its view, these serious precedents justified the involvement of national police units to prevent matters getting out of hand and disturbing public order.

387. With regard to the alleged arrest of workers following the protest march, the Government indicates that the matter has not been referred to it.

388. With respect to the complainant's memorandum concerning the CARENA strike, the Government remarks that it knows nothing of the actual details of the dispute, which appears to it to consist of a web of lies whose objective is to undermine the reputation of Côte d'Ivoire at the international level. Seeking to re-establish the truth, it states that on 18 and 20 December 1996, meetings chaired by the technical services of the Ministry of Employment resulted in the parties to the dispute signing a memorandum of agreement on the following points: recognition by the general manager of CARENA that the principal activity of the enterprise is shipbuilding and repair, convening of a meeting of the industrial advisory board on 15 January 1997 at the latest, return to work by the striking workers on Monday, 23 December 1996 at 8 a.m. In accordance with the memorandum of agreement, after due consideration the industrial advisory board decided to put the matter before the Permanent Independent Conciliation Committee (CIPC) established by common accord between employers and workers. The conclusions reached by the Committee would be submitted to the industrial advisory board for approval.

389. Contrary to the information provided by the trade union confederation Dignité, the case could not be discussed by a joint technical committee as the shipbuilding and repair sector does not constitute a branch of activity. The joint committee chaired by the labour inspector and made up of the employer and workers' representatives is only competent to classify employees.

390. Nevertheless, with discussions still continuing in the quest for a solution, the officials of Dignité retracted and stopped participating on the grounds that the work of the CIPC was not advancing at the desired pace and that the employers' representatives within that structure were not qualified to discuss the shipbuilding and repair sector. Consequently, and without requesting another meeting of the industrial advisory board, Dignité gave strike notice on 27 January 1997 on behalf of the workers of the CARENA enterprise, who then went on strike on 5 March 1997.

391. Following the strike notice, a meeting held on 27 March 1997 resulted in the following points of agreement: the employer renounced the envisaged dismissals; a meeting of the industrial advisory board was scheduled for 1 April to consider new elements in the case; the striking workers would return to work on 1 April 1997; Dignité was invited to communicate its definitive position to the Minister's office by 28 March at the latest.

392. In a letter dated 28 March 1997, the Minister of Employment confirmed these provisions to the Secretary-General of Dignité, inviting him to lift the call for strike action, which was in violation of the above-mentioned memorandum of agreement, saying that otherwise he would be obliged to allow the employer to resume his usual activities.

393. The conciliatory attitude demonstrated by the Minister of Employment was not well received by Dignité. Its Secretary-General responded, entirely unexpectedly, by sending an offensive letter on 29 March 1997 in which he made the lifting of the call for strike action subject to a number of conditions, including the meeting of the advisory board. In so doing, he blocked the whole bargaining process.

394. During the 1 May 1997 celebrations, the Secretary-General of Dignité indicated to the Prime Minister that he wished to resume negotiations, in accordance with the Prime Minister's instructions and with the objective of again bringing together the two parties to the dispute. The consultations conducted by the Minister's advisers did not however allow the matter to be promptly settled because of difficulty contacting (a) the Secretary-General of Dignité due to travel during the months of June and July 1997 and (b) the general manager of the CARENA enterprise due to his taking leave in July and August 1997. Finally, a meeting chaired by the director of the Minister's office to reconcile the positions of the employer and the workers' representatives of the CARENA enterprise was held on 1 October 1997.

395. The Government confirms the failure of the negotiations. The manager of CARENA considered that the employees who had refused to return to work at the end of the illegal strike had deserted their duties. He agreed, however, to allow the former CARENA workers to apply for the 20 posts that remained to be filled. The Secretary-General of the trade union confederation Dignité thought that negotiations should be resumed, on the one hand to continue to examine the workers' claims and, on the other, to achieve the reinstatement of all the workers who had participated in the strike.

396. The Government notes the unprofessional attitude shown by Dignité officials in this case. While the officials claim that their members saw the Minister of Employment at the CARENA enterprise, the Government maintains that the Minister never went to the enterprise. All negotiations of collective disputes presided over by the Minister are held at the Ministry of Employment, unless the enterprise is situated outside the Abidjan region. The Government adds that the Director of Employment and Labour Regulation, Mr. N'Dri, did not attend the meeting on 26 March 1997, as was incorrectly stated by the complainant, as he was in Geneva at that time to participate in the 268th Session of the Governing Body of the International Labour Office.

C. The Committee's conclusions

397. The Committee notes that this case relates to allegations of the dismissal of 14 staff delegates and the mass dismissal of workers (300 individuals), designated by name, during a strike for occupational claims, in March 1997; allegations of the infringement of the right of trade unions to demonstrate and of the inviolability of trade union premises; and allegations of physical violence, questioning and ill-treatment of trade unionists, in April 1998.

398. The Committee observes that the accounts of this case submitted by the complainant and the Government differ on a number of points.

399. According to the complainant, the workers of the Abidjan Ship Repair and Industrial Work Enterprise (CARENA) took strike action on several occasions to persuade their employer to apply the wage scale of shipbuilding instead of the one applied in the mechanical engineering industry. The complainant acknowledges that a memorandum of agreement was signed on 20 December 1996 in which the employer recognized that the principal activity of the CARENA enterprise was shipbuilding and repair. However, the memorandum of agreement, according to the complainant, went unheeded. The workers then began a peaceful strike which gave rise to the occupation of the premises by the police and a lock-out by the employer. The employer then dismissed 300 strikers on the grounds that they had all resigned and, for three days, had workers driven from the area surrounding the enterprise by police firing tear gas.

400. The conciliation meetings subsequently held did not prove successful. The workers maintained their call for strike action and the employer maintained the mass dismissal of 300 workers and 14 staff delegates with the authorization of the Minister of Employment. Likewise, a further attempt at conciliation on 1 October 1997 ended in failure as the employer had resumed business using subcontracted workers. Dignité asked that the 300 striking workers be reinstated in their posts and that the wages and allowances inherent in the classification of CARENA in the shipbuilding and repair sector be re-examined, while the employer only accepted to rehire 20 workers.

401. The aim of the protest march on 4 February 1998 was to bring the industrial dispute going on at the CARENA enterprise to the attention of the authorities, the Prime Minister and the President of the Republic. It was harshly suppressed by the police who once again resorted to the use of tear gas (physical violence, injuries, questioning, ill-treatment, occupation of Dignité's headquarters for ten days).

402. According to the Government, on the other hand, the memorandum from the complainant is misleading. The meetings chaired by the advisers from the Ministry of Employment resulted in the parties signing a memorandum of agreement on 20 December 1996. However, Dignité, on the grounds that the deliberations of the Permanent Independent Conciliation Committee were not progressing and that the employers' representatives within this structure were not qualified to discuss the shipbuilding and repair sector, began a new strike.

403. According to the Government, a conciliation meeting was held on 27 March 1997 at the Ministry of Employment, which resulted in the following areas of agreement: the employer renounced the envisaged dismissals, an industrial advisory board meeting was convened for 1 April, the workers were to return to work on 1 April 1997. However, the Secretary-General of Dignité, in a letter sent to the Minister of Employment, made the lifting of the call for strike action subject to the meeting of the advisory board, thus blocking the bargaining process.

404. The conciliation meeting on 1 October 1997, which was in fact held following an appeal made by the Secretary-General of Dignité on 1 May 1997 to the Prime Minister to resume negotiations, did not spell an end to the issue given that the parties' positions continued to diverge.

405. The Committee recalls first of all the importance that it attaches to respect of the right to strike which is an intrinsic corollary to the right to organize protected by Convention No. 87. In this case, the Committee observes that the Minister's declaration of the strike as illegal was used by the employer to dismiss en masse 300 striking workers and 14 were staff delegates. The Committee regrets that the declaration of the strike as illegal was made by the Government and recalls that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522.]

406. The Committee recalls that the use of extremely serious measures, such as dismissal of workers and, a fortiori, staff delegates for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association. [See Digest, op. cit., para. 597.] Furthermore, the Committee wishes to reiterate that the hiring of workers to break a strike and requiring workers to go back to work, except for such cases where the strike risks causing a situation in which the life, health or personal safety of populations might be endangered, are contrary to the principles of freedom of association. [See Digest, op. cit., paras. 570 and 572.] The Committee therefore urges the Government to take the necessary action to ensure the reinstatement in their posts of all the workers and workers' delegates to have suffered anti-union discrimination who were dismissed after going on strike at the CARENA enterprise on 6 March 1997.

407. Furthermore, as regards the involvement of the police to drive the strikers away from the area surrounding the enterprise over a period of three days, from 25 to 27 March 1997, and the use of tear gas, the Committee notes that the Government did not refute this allegation. The Committee recalls that in strike movements, the public authorities should resort to the use of force only in situations where law and order is seriously threatened. In the Committee's view, the use of police for strike-breaking purposes constitutes an infringement of trade union rights. [See Digest, op. cit., paras. 579 and 580.] In this case, the Committee considers that trade union rights were clearly infringed during the three days when strikers were driven away from the area surrounding the enterprise by the police, on the employer's request.

408. As regards the police being called in a second time to stop the solidarity march on 4 February 1998, whose aim was to request that negotiations be resumed, and where, according to the complainant, the police once again used tear gas and caused injuries among demonstrators, the Committee cannot be satisfied by the Government's explanations that the police involvement was to avoid disturbances of the peace on the pretext that Dignité was inciting social unrest and had reacted in the same way in other industrial disputes. In fact, in this case the Government gives no concrete examples of any incitement to violence made by Dignité. The Committee considers that this police action infringed the right to demonstrate of this occupational organization seeking to defend its members' interests. It requests the Government to initiate an inquiry into these two police interventions in order to determine those responsible so that they may be brought to justice and to refrain from such actions in the future.

409. With respect to the allegation concerning the attack on and occupation of Dignité's premises for a number of days following the trade union demonstration on 4 February (broken windows, tear gas, occupation of the premises for a number of days), the Committee observes with regret that the Government provides no comments on this allegation. The Committee thus fears that this allegation is not unfounded. It recalls that the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so. Consequently, the entry by police or military forces into trade union premises constitutes a serious and unjustifiable interference in trade union activities that creates a climate of fear among trade unionists which is prejudicial to the exercise of trade union activities. [See Digest, op. cit., paras. 175, 176 and 179.] The Committee therefore once again requests the Government to undertake an inquiry to bring those responsible to justice.

410. On a general note, concerning the industrial dispute at the CARENA enterprise, the Committee requests the Government to resume negotiations on this matter and to keep it informed of decisions taken by the industrial advisory board made up of the workers and employers concerned in this industrial dispute under the supervision of experts from the Ministry of Employment.

The Committee's recommendations

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

Case No. 1961

Interim report

Complaint against the Government of Cuba
presented by
the World Confederation of Labour (WCL)

Allegations: Raids and searches of trade unionists' homes,
including the seizure of property and documents;
lack of response to requests for the recognition
or registration of organizations

412. The complaint in this case was submitted in a communication from the World Confederation of Labour (WCL) dated 26 March 1998. The Government responded in a communication dated 21 July 1998.

413. In accordance with the Committee's procedure (paragraphs 49 and 50), on 19 August 1998 the Office sent the complainant organization a copy of the Government's observations, inviting it to submit -- given the contradictions between its allegations and the Government's reply -- its comments and any additional information to enable the Committee to examine the case in full knowledge of the facts.

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

A. The complainant's allegations

415. The World Confederation of Labour (WCL) alleges in its communication of 26 March 1998 that on 11 November 1997, Cuban state security officials burst into the homes of Mr. Pedro Pablo Alvarez Ramos, President of the Single Council of Cuban Workers (CUTC) and Mr. Vicente Esobal Ribeiro, Director of the Cuban Institute of Independent Trade Union Studies (ICESI). The state police conducted a thorough search and seized numerous documents relating to independent trade union activities in Cuba. These documents included in particular the Universal Declaration of Human Rights, the programme of action and declaration of principles of the CUTC, the Viña del Mar Declaration, several books from the Latin American Central of Workers, various documents and magazines from the Cuban workers' solidarity movement, one of the reports by the United Nations Special Rapporteur for Cuba, Dr. Carl Johan Groth, publications from the Catholic Church, personal letters belonging to the trade union officials, other documents and office material.

416. The WCL states that the raids on the homes of the two CUTC leaders and the seizure of the material constitute serious disregard for the principles contained in ILO Convention No. 87 and also violate civil liberties. By not having access to this material which, in a regime lacking in freedom is the only source of access to information concerning the trade union movement and trade union and human rights, the Cuban trade union leaders lack the basic tools to train the country's workers and strengthen democratic trade unionism.

417. The WCL explains that the Single Council of Cuban Workers (CUTC) is a trade union organization which was established in 1995. On 8 October 1996, the Cuban Institute of Independent Trade Union Studies submitted a formal application for recognition. The CUTC also applied for registration. There has been no response of any kind by the Cuban authorities to either request. While the country's legislation provides that workers are entitled to establish independent trade union organizations, this legal standard does not in fact apply in practice.

418. The WCL explains that this is just one of many incidents whose purpose is to hinder the existence of a truly free trade union movement in Cuba. These violations of trade union rights are not isolated but instead are part of a systematic pattern of anti-union discrimination in Cuba, as the Committee on Freedom of Association has already seen in its examination of Case No. 1805 concerning the Confederation of Democratic Workers of Cuba.

B. The Government's reply

419. In its communication dated 21 July 1998, the Government refers to the complaint alleging raids on the homes of supposed trade union leaders of an organization called the Single Council of Cuban Workers (CUTC) and the seizure of material. Investigations made in this connection were unable to prove the veracity of the facts, given that the address of the residence allegedly raided is unknown.

420. Furthermore, the Government continues, in investigating the matter of the trade union activity attributed to a supposed organization called the Single Council of Cuban Workers (CUTC) it has not been possible to find out in which workplace, enterprise, establishment, factory, body or labour institution there is a body of workers which serves as the social and labour base for this organization and which accepts its authority as trade union leader, chooses its leaders and follows its trade union programme in its everyday labour relations. Given the absence of any such a necessary and essential labour framework, it is impossible to speak of a trade union organization, trade union leaders, or, most importantly, a body of workers who in an entrepreneurial organization of any kind is an essential element in any trade union activity.

421. The Government states that in Cuba there are 19 national sectoral trade unions which, on the basis of decisions freely taken by their members, periodically hold congresses, adopt the statutes, regulations and decisions which they consider appropriate for the defence of their members' interests, as well as those relating to their structure, functions, methods and styles of work, free of any interference from the public authorities. By reason of this trade union autonomy, these national sectoral trade unions have 77,045 grass-roots sections. None of these corresponds to a supposed organization called the Single Council of Cuban Workers.

422. The Government states that at present approximately 25,000 collective labour agreements have been concluded, which involves the enterprise management, the trade union representatives and the actual body of workers meeting up to draft, discuss and approve the contents of these collective agreements, and monitoring observance in accordance with prevailing legislation. In none of the country's workplaces is there an organization called the CUTC.

423. The Government considers that the Committee on Freedom of Association should not put into operation a mechanism that is so costly for all the member States on the basis of dubious testimony from groups who address appeals to it, underneath the mask of supposed trade unionism, groups who bear no relation to trade unionists, with objectives that do not correspond to the function exercised by the Committee on Freedom of Association. Mr. Pedro Pablo Alvarez Ramos and Mr. Vicente Escobal Ribeiro are not trade union leaders, they do not head any body of workers, they have not been elected at any workplace as representatives of any body of workers, nor do they exercise any form of trade union activity in any workplace in the country. There is no evidence that their homes were raided as a result of their trade union activities, nor for any other reason.

C. The Committee's conclusions

424. The Committee observes that in this complaint the complainant organization has alleged: (1) raids and searches, including the seizure of documents and office material by state police, of the homes of Mr. Pedro Pablo Alvarez Ramos, President of the Single Council of Cuban Workers (CUTC) and of Mr. Vicente Escobal Ribeiro, Director of the Cuban Institute of Independent Trade Union Studies (ICESI); and (2) the lack of response of the authorities to the ICESI's formal application for recognition and the CUTC's application for registration.

425. The Committee notes the Government's observations, and in particular that: (1) it has not been able to establish the veracity of the allegations as the address of the residence that was allegedly raided is not known, and for this reason the raid has not been proven; (2) in no workplace is there an organization called the CUTC or a body of workers which corresponds to that organization; (3) Mr. Alvarez Ramos and Mr. Escobal Ribeiro are not trade union leaders, they do not represent any body of workers, nor do they exercise any type of trade union activity in any workplace in the country.

426. The Committee observes that, in accordance with the Committee's procedure (paragraphs 49 and 50), on 19 August 1998 the Office sent the complainant organization a copy of the Government's observations, inviting it to submit -- given the contradictions between its allegations and the Government's reply -- its comments and any additional information to enable the Committee to examine the case in full knowledge of the facts.

427. The Committee regrets that the complainant organization has not yet sent any comments or additional information and therefore asks it to do so prior to its next meeting in March 1999, given that otherwise it will have to examine the case without all the elements before it. In particular, the Committee requests the complainant organization to send, in addition to any comments and supplementary information it wishes to submit:

428. The Committee also requests the Government to indicate specifically whether the CUTC and the ICESI have presented a formal request for registration to the authorities and if so, what has been the reply.

The Committee's recommendations

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

Case No. 1950

Definitive report

Complaint against the Government of Denmark
presented by
-- the Danish Union of Teachers (DUT) and
-- the Salaried Employees' and Civil Servants' Confederation (FTF)

Allegations: Restrictions on the right to strike and interference
in free collective bargaining

430. In a communication dated 22 January 1998, the Danish Union of Teachers (DUT) and the Salaried Employees' and Civil Servants' Confederation (FTF) submitted a complaint of violations of freedom of association against the Government of Denmark. The Government sent its observations in a communication dated 20 May 1998.

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

A. The complainants' allegations

432. By way of background to the complaint, the complainants explain that the Danish Union of Teachers (DUT) is a member of the Salaried Employees' and Civil Servants' Confederation (FTF), which as a central organization handles the interests of its member organizations in general areas and in international matters. The interests of the DUT relating to pay and employment conditions at national level are handled by the DUT through the Danish Central Organization of Teachers (LC).

433. The complainants contest a decision of 8 January 1997 by the Local Civil Servant Disciplinary Tribunal which held that it was inconsistent with Danish civil servant law when, in connection with an official strike organized by the Central Organization of Teachers (LC), that same organization established a boycott of the teaching positions affected by the strike. The strike, which constituted a lawful industrial action for the purpose of obtaining better payment and working conditions under the collective agreements, comprised all members of the Danish Union of Teachers employed in all positions regulated by the terminated collective agreement for teachers in the primary and secondary school system and the School Directorate of Copenhagen dated 9 July 1993. These teachers are not civil servants and accordingly, the strike did not comprise civil servants. The boycott, however, comprised all LC members, including civil servants, and prohibited its members from applying for or accepting positions that were governed by the terminated collective agreement for teachers.

434. The order of the Local Civil Servant Disciplinary Tribunal fined the LC 100,000 Danish kroners. According to the rules of the LC, the penalty is payable by the Danish Union of Teachers, as the conflict comprised members of that Union only. A copy of the decision was attached to the complaint.

435. The National Association of Local Authorities in Denmark and the Local Authority of Frederiksberg, both employers' organizations, asserted to the Local Civil Servant Disciplinary Tribunal that the boycott notices pertaining to the group of civil servants (the so-called "closed group")(1)  were an indication of collective industrial action by civil servants, with a view to influence effectively the pay formation in the labour dispute.

436. The LC asserted that the boycott did not constitute collective violation of anything that could be considered part of the obligations of the civil servants concerned, as they are under no obligation to apply for or accept any of the positions comprised by the boycott. They would not be in breach of any duty by omitting to apply for positions. The boycott did not prevent the employers from appointing civil servants to other positions, or from classifying such posts as positions of civil servants employed by local authorities.

437. The legal situation in Denmark, as expressed, inter alia, in the above decision of the Local Civil Servant Disciplinary Tribunal, is accordingly that Danish law -- specifically the Danish Act on Civil Servants -- prohibits teachers who are employed as civil servants from taking collective industrial action, whether in the form of boycotts or strikes.

438. In summary, it can be ascertained that the rights of the groups of teachers in the Danish primary and secondary school system who perform the same work for the same salary differ considerably as regards collective industrial action. Teachers employed on a collective agreement basis are entitled to strike, inter alia, whereas teachers employed as civil servants are neither entitled to strike nor to take any other form of collective industrial action.

439. In conclusion, the Danish Union of Teachers and the FTF consider that this legal situation is contrary to ILO Conventions Nos. 87 and 98 such as they are drafted and have been interpreted through subsequent decisions of the Committee on Freedom of Association.

B. The Government's reply

440. In its communication dated 20 May 1998, the Government explains by way of background that the Local Civil Servant Disciplinary Tribunal in its decision of 8 January 1998 held that it was in contravention of the Danish civil servant law that teachers employed as civil servants participated in industrial action in connection with a strike called by teachers employed under a collective agreement.

441. The Local Civil Servant Tribunal stated that the action announced by the LC would have led to the taking of collective industrial action which would generally have been comparable to a situation where the public servant was to act in breach of his/her obligations as civil servants under the civil servant law and the Act on the Local Civil Servant Tribunal. The collective industrial action planned meant that none of the teachers with civil servant status were allowed to seek or accept positions covered by the collective agreement which had expired and which had not been renegotiated. The Danish Constitution provides that rules on recruitment, dismissal, transfer and retirement of civil servants are laid down by statute. Regulation of employment and pension terms for civil servants in the state sector takes place partly by legislation, that is the Consolidation Act No. 572 of 5 August 1991 on civil servants in the State, the school system and the national church, as subsequently amended (the TL) and Consolidation Act No. 724 of 9 September 1993 on civil servants in the State, the school system and the national church on pensions to civil servants (the TPL) and partly by agreement under section 45 of the TL.

442. The procedure for negotiations and conclusion of agreements has been laid down by the basic agreement applying to civil servants (that is the Consolidation Act No. 515 of 28 November 1969 on the basic agreement under Act No. 291 of 18 June 1969 on civil servants in the State, the school system and national church), but the settlement of any disputes of interest takes place according to the rules laid down in section 46 of the TL.

443. Civil servants are not covered by the general labour law system and most of the general labour law legislation does not apply to civil servants.

444. The Government asserts that in any employment relationship there is a certain balance between the rights and duties of the employer and the employee, respectively.

445. Employment as civil servants in the state sector was originally seen as a life-long relationship and a special loyalty was presumed from the civil servant; this was balanced by security of tenure and pension rights at a time when labour market pension was an unknown concept.

446. The most important differences between employment as a civil servant and employment in accordance with the ordinary labour law system are the following:

447. The Government concludes that civil servants are subject to a number of special employment terms which give them special obligations, but also a number of advantages.

448. In the Government's opinion the duty to accept transfers is offset by the easier access to another position, if required, and the rules on decorum and the corollary duty not to strike are offset by favourable rules on severance pay, pension due to any other unforeseeable event than age and early retirement. Furthermore, disciplinary rules ensure a thorough investigation of cases of misconduct and prevent imposition of sanctions which are out of proportion to the misconduct. The status of civil servants should -- as other employment relationships -- be seen as a whole and this means that the entire employment relationship should be taken up for revision if individual elements are taken out or radically changed.

449. When the local authorities took over the regulation of pay and employment terms for teachers in the primary and secondary school system the starting point was that teachers should in the future be employed under collective agreements. As teachers who were already civil servants could not be transferred to employment under a collective agreement against their will, legislation was adopted to ensure that they could continue to be employed as civil servants, the so-called "closed group" (Act No. 382 of 20 May 1992). At the wish of the Danish Union of Teachers it was further ensured that this type of employment status could be preserved, also in connection with certain job shifts.

450. This is the reason for the existence of two different types of employment status in the school system; while employees in the "closed group" are covered by the terms described above, other employees are covered by collective agreements and insurance-based pension schemes.

451. By way of conclusion, the Government emphasizes that the group of teachers with the status of civil servants who became covered by the collective action with boycott of advertisements of positions of teachers covered by collective agreements, will all be free to choose to be employed under a collective agreement. However, experience shows that this normally never happens because the teachers prefer to preserve their status as civil servants, both generally and in connection with job shifts, which is also confirmed by the wish of the LC which concluded the special agreement making it possible for civil servants to preserve their status, also in connection with job shifts. The experience is that only a very small group of about five persons have been transferred to employment under a collective agreement, for instance in cases where the local recruitment authorities have stipulated this as a condition in connection with promotion to, for instance, the position of vice-principal.

452. The situation is thus that this group of teachers has voluntarily chosen to remain employed with the status of civil servants with the special composition of rights and duties attached to this status, including the duty not to take collective industrial action.

453. As teachers are thus free to chose an employment status governed by the ordinary labour law system the Government considers that it has not violated ILO Conventions Nos. 87 and 98. The Government acknowledges, however, the problems that a wide use of employment of persons with civil servant status may cause in relation to Denmark's international commitments and, for this reason, has in recent years tried to reduce the use of civil servant employment relationships. Discussions are presently taking place between the Ministry for Finance and the Danish civil servants' organizations in this regard.

C. The Committee's conclusions

454. The Committee notes that the allegations in this case concern the restriction on the right to strike of certain teachers who are covered by civil service legislation and regulations.

455. In particular, the Committee notes from the 1995 judgement of the Local Civil Servant Disciplinary Tribunal in the case of the National Association of Local Authorities in Denmark and the Local Authority of Frederiksberg against the Central Organisation of Teachers (LC) that the LC was charged with having initiated collective industrial action among some 35,000 teachers in the Danish primary and secondary school system who are considered to be civil servants. These teachers are apparently covered by the Act on Local Civil Servant Disciplinary Tribunal and the Act on Civil Servants whereby collective industrial action has been considered to be unlawful by virtue of sections 2(1) and 3(3) and sections 53(1) and (2) and section 54 respectively (see annex). Accordingly, the tribunal ordered the LC to pay a fine of 100,000 Danish Kroner.

456. The Committee first notes that, while the action actually being attacked was the "boycott" by members of the organizations affiliated to the LC against applying for or accepting positions which are regulated by the terminated collective agreement for teachers in the primary and secondary school system, the tribunal's judgement rules against the LC because this boycott was initiated among civil servants "in order to influence effectively the pay formation in the labour dispute" as part of the "collective industrial action" undertaken by the members employed in the positions regulated by the terminated collective agreement. While noting that the LC argued to the tribunal that the civil servants were not under an obligation to apply for or accept positions affected by the notice of boycott and therefore there was no breach of duty, the Committee considers that it is only necessary to examine the core issue in this case which is the tribunal's judgement of the action as unlawful collective industrial action by virtue of the Acts on Local Civil Servant Disciplinary Tribunal and on Civil Servants. The question to be considered by the Committee is, therefore, simply whether teachers may be restricted in their right to strike due to their status as civil servants.

457. The Committee would recall that it has been faced with many cases involving restrictions on the right of private- and public-school teachers to take collective action. The unwavering approach to the question of whether they, as teachers often having special domestic status and functions, should be allowed to exercise the right to strike has been clearly stated. [272nd Report, Case No. 1503 (Peru), paras. 116 and 117; 277th Report, Case No. 1528 (Germany), paras. 285 and 286; 286th Report, Case No. 1629 (Republic of Korea), para. 563]. The Committee must therefore reiterate that it has always held the right to strike to be one of the fundamental rights of workers and their organizations; it is one of the essential means through which they may promote and defend their occupational interests. It recalls that the right to strike can only be restricted or prohibited in: (1) the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, 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.] However, the Committee considers that workers in education are not covered by the definition of essential services or of the public service exercising the powers of the public authority [op. cit., Cases Nos. 1503, 1528 and 1629].

458. The Committee notes the opinion expressed by the Government in its reply that the rules on decorum and the "corollary duty not to strike" are offset by favourable rules on severance pay, pension and early retirement. Furthermore, the Committee notes the Government's argument that two different types of employment status exist in the school system -- the "closed group" with the status of civil servants and the other employees covered by collective agreements (who enjoy the right to strike) -- and that, while being free to choose their employment status, certain teachers have opted, and will probably continue to choose, to preserve their status as civil servants because of the benefits afforded. The Committee has, however, already stressed in this respect that it was not swayed by the particular status or designation that any national system might bestow on teachers; the decisive factor is whether the functions of the employees covered by the strike ban show that they are engaged in an essential service or in a public service exercising the powers of the public authority. To paraphrase the words of the Committee of Experts (Freedom of association and collective bargaining, General Survey, 1983, paragraph 214), to permit a too broad definition of the public service would mean that the principle of the right to strike would become meaningless. [277th Report, Case No. 1528 (Germany), para. 287.] The arguments that traditionally civil servants do not enjoy the right to strike because the State as their employer has a greater obligation of protection towards them have not persuaded the Committee to change its position on the right to strike of teachers. [ibid., para. 288.]

459. The Committee must therefore request the Government to take the necessary measures to ensure that all teachers, regardless of their classification as public servants, enjoy the right to strike and requests the Government to keep it informed of the progress made in this regard.

460. Moreover (and taking due note that the complainant in this case is the Danish Union of Teachers because, according to the rules of its parent organization, the Danish Central Organization of Teachers (LC), the fine is to be paid by the DUT), the Committee would recall that no one should be penalized for carrying out or attempting to carry out a legitimate strike and that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. [See Digest, op. cit., para. 590, and Freedom of association and collective bargaining, General Survey, 1994, para. 176.] The Committee therefore requests the Government to take the necessary measures to ensure that the Local Civil Servant Disciplinary Tribunal's judgement can be reviewed in the light of the above-mentioned freedom of association principles and to keep the Committee informed in this regard.

The Committee's recommendations

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

Annex

Act on Civil Servants

Cases Nos. 1851 and 1922

Interim report

Complaint against the Government of Djibouti
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD)
-- the Organization of African Trade Union Unity (OATUU)
-- Education International (EI)
-- the Secondary Teachers' Union (SYNESED)
-- the Primary Teachers' Union (SEP)

Allegations: Dismissals and suspensions of trade unionists
following strike action, confiscation of trade union archives,
interference with May Day demonstrations

462. The Committee has already examined Cases Nos. 1851 and 1922 on several occasions, most recently at its March 1998 meeting, when it submitted an interim report to the Governing Body taking into account information gathered by a direct contacts mission to Djibouti in January 1998. [See 309th Report, paras. 224-251, approved by the Governing Body at its 271st Session in March 1998.]

463. Since the last examination of the case, the Djibouti Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD) sent additional information and new allegations on 31 May 1998.

464. The Government sent certain observations in a communication dated 11 July 1998.

465. Djibouti 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

466. During its March 1998 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

B. New allegations of the complainants

467. In its communication of 31 May 1998, the Inter-Trade Union Association of Labour/General Union of Djibouti Workers (UDT/UGTD) states that none of the measures promised to the direct contacts mission has been implemented: (1) the trade union leaders have still not been reinstated; despite assurances given to the mission, this matter has not been specifically addressed; (2) despite the agreement reached between the UDT/UGTD and the Government in the presence of the ILO, the Labour Code is being revised unilaterally by the Ministry of Labour without any consultation with the social partners; (3) anti-union measures have continued and have intensified since the publication of the report of the direct contacts mission; (4) the leaders of the health workers' union who had been imprisoned following strikes have been released, but tension remains and the demands put forward by these workers have still not been taken into account; (5) the Ministry of Labour refused to allow members of the UDT/UGTD, the sole representative workers' organization, to join the delegation to the International Labour Conference in June 1998; (6) May Day celebrations in 1998 took place under close police surveillance and the Ministry of the Interior banned meetings in front of UDT/UGTD headquarters; (7) the Government adopted new measures to cut wages, although seven months' wages from last year remain unpaid; (8) increasing poverty, nepotism, corruption and embezzlement with impunity are creating fears of an unprecedented social explosion.

468. In conclusion, the complainants demand the immediate and unconditional reinstatement of the trade union leaders who were dismissed in September 1995 and September 1996 and payment of their wages that were frozen after those dates; compliance with Conventions Nos. 87 and 98; implementation of the agreement signed by the UDT/UGTD and the Government concerning the revision of the Labour Code; an end to anti-union measures and the removal of obstacles to trade union meetings; and recognition of the UDT/UGTD as a social partner, in accordance with the spirit of tripartism.

C. The Government's reply

469. In its communication of 11 July 1998, the Government provided certain information in response to the last communication of the UDT/UGTD.

470. With regard to the dismissals, the Government replies that talks with the trade unions have not yet ended.

471. With regard to the revision of the Labour Code, the Government maintains that, contrary to the complainants' allegations, the trade unions were invited to take part in this work but made reinstatement of the dismissed workers a precondition for doing so. They rejected the Government's proposal that they should take part in the revision of the Labour Code while talks on the dismissals were in progress.

472. With regard to the anti-union measures, the Government states that there have been no such measures directed against the trade unionists and notes that the complainants offer no evidence in support of their allegations.

473. With regard to participation by UDT/UGTD representatives as Djibouti workers' representatives at the International Labour Conference, the Government affirms that the workers are indispensable partners and that it has always taken their demands into consideration. However, it was unable for economic reasons to attend the International Labour Conference in June 1998.

474. With regard to the interference with the May Day demonstrations, the Government states that May Day passed peacefully and no incidents were reported.

475. With regard to delays in the payment of wages and wage cuts, the Government explains that wages for January, February and March 1998 have been paid to the workers concerned.

D. The Committee's conclusions

476. The Committee notes that the aspects of the cases still pending after its examination in March 1998 concerned the following points: measures to be taken with a view to restoring the UDT trade union archives that had been confiscated on 16 July 1997; measures to be taken to reinstate all the trade union leaders and members who had been dismissed or suspended, if they so requested; the need for meetings with the trade union organizations, as arranged during the meeting that took place during the direct contacts mission at the Ministry of Labour; measures to be taken to investigate the complaints lodged by the trade union organizations and trade unionists and by Mr. Aref; information on the revision of labour legislation and, in particular, on consultations with the social partners -- employers and workers -- in this respect.

477. The Committee notes the contradictory nature of the information provided by the complainants and the Government. In particular it notes with great concern that, according to the complainants, the trade union situation has deteriorated, that the senior leaders of the UDT and the trade unionists dismissed in 1995, 1996 and 1997 have still not been reinstated, that the social partners have not been consulted on the revision of the Labour Code and that the Minister of the Interior has even banned May Day meetings in front of UDT/UGTD headquarters.

478. The Committee also notes with deep concern that the Government has provided only very partial information on these allegations and that it has not sent any positive response regarding measures taken to re-establish freedom of association. Under these circumstances, the Committee can only reiterate its previous recommendations and adds, with regard to allegations concerning the ban on May Day meetings in front of UDT/UGTD headquarters, that the right to organize public meetings and processions on the occasion of May Day constitutes an important aspect of trade union rights. [See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 134.]

The Committee's recommendations

479. In the light of the foregoing interim conclusions, the Committee, noting with deep concern that, despite the promises made by the Government to the direct contacts mission, no tangible progress has been made towards the full restoration of freedom of association, invites the Governing Body to approve the following recommendations:

Case No. 1968

Definitive report

Complaint against the Government of Spain
presented by
the Workers' Trade Union (USO)

Allegations: representativeness -- favouritism with regard to two
trade unions -- establishment of an Economic and Social Council

480. The complaint of the Workers' Trade Union (USO) is contained in communications dated 29 May and 17 July 1998. The Government sent its observations in a communication dated 24 September 1998.

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

A. The complainant's allegations

482. The complainant recalls that it enjoys significant representativeness in the territory of the Autonomous Community of Rioja (18 per cent), where it exercises its activities. It considers that, from an objective standpoint, this fact entitles it to be represented on the bodies set up within the Rioja administration, pointing out that this is also in conformity with the principle of "trade union representativeness" which in Spain is based on the number of representatives elected in trade union elections held in enterprises and public bodies.

483. The complainant describes the different agreements concluded between the regional government and the two trade union confederations, the General Union of Workers (UGT) and the Trade Union Confederation of Workers' Committees (CC.OO.) in the 1990s, stating that one of the effects of these agreements was to exclude it from the machinery set up for participation in the social life of the Autonomous Community of Rioja, and the Economic and Social Council in particular.

484. Specifically, the complainant recalls that at the end of 1989 a process of social dialogue was launched in the Autonomous Community of Rioja with the support of the regional government and the trade union confederations UGT, CC.OO. and USO, which ultimately led to the conclusion of the "Regional Agreement 90-91" between the Government, the UGT and the CC.OO. The complainant explains that it was unable to sign this agreement, which it considered to be suicidal as it included a series of clauses under which the USO was excluded from various follow-up committees and prevented from participating in the councils set up under the agreement. The complainant considers that this first agreement illustrates the characteristics of social dialogue of that time, which was based on support for government policies on the part of the social partners in exchange for certain concessions in favour of the organizations that signed the agreements.

485. In 1992 the government of the Autonomous Community of Rioja concluded a series of agreements with the trade union confederations UGT and CC.OO. with a total cost of 3,441,000,000 pesetas. The subjects covered by these agreements included employment and regional development, community policy, spouses, occupational safety and health, housing policy, transport and institutional policy; only the organizations that signed the agreement were entitled to intervene and ensure the follow-up on these different subjects. The complainant was excluded from any participation or intervention and, therefore, could not exercise its functions in terms of defending and promoting the economic and social interests of its members. A similar agreement was concluded on 21 December 1993, this time with the additional participation of the Federation of Employers of Rioja (FER). On 6 July 1996, the new regional government, the trade unions UGT and CC.OO. and the FER concluded a new agreement known as the "Pact for Employment" covering similar subjects to those dealt with in its predecessors (public investment in housing, infrastructure, waterworks, transport, industrial estates, economic incentives, training, environment, community policy, occupational safety and health and financing of enterprises). This Pact for Employment also grants a number of advantages to the signatory organizations, including:

486. The complainant considers that all of these facts once again reveal a policy intended to exclude it from the social life of the Autonomous Community; it goes on to describe in further detail the prejudice it has suffered as a result of the methods selected for the composition of the Economic and Social Council. On 18 July 1997 the legislative assembly of the Autonomous Community of Rioja adopted Act No. 6/1997 respecting the organization of the Economic and Social Council. Article 5 of the Act provides that the Council shall have 22 seats distributed as follows: ... (b) first group: seven councillors appointed by the most representative trade union organizations, in proportion to their representativeness, in accordance with sections 6(2) and 7(1) of Basic Act No. 11 of 2 August 1985 concerning freedom of association. In other words, in order to participate in this advisory body, an organization must have as members at least 10 per cent of all representatives of workers and state employees or demonstrate representativeness amounting to at least 15 per cent of staff representatives, members of works committees and staff assemblies elected within the Autonomous Community. In any case the organization must have a minimum of 1,500 of these and not be federated or confederated with another organization at the state level.

487. As regards the first criterion, the complainant points out that only the UGT and CC.OO. are in a position to comply with it. Act No. 6/1997 makes an unjustified use of a criterion of representativeness which has no bearing on the reality in the region. As regards the second criterion, the requirement of 1,500 is equivalent not to 15 per cent, but to 70 per cent in the case of the Autonomous Community of Rioja: the complainant thus cannot even aspire to participate in this body.

488. In other words, in these circumstances, the application of section 5 of Act No. 6/1997 has the effect of preventing the complainant from sitting on the Economic and Social Council.

489. The complainant considers that the criteria on which the composition of the Economic and Social Council is based are discriminatory and violate the principles of freedom of association; they also run counter to the very reasoning behind the adoption of the Act, namely the idea of promoting and facilitating citizens' participation in economic and social life either directly or through organizations and associations. They have the effect of favouring some organizations to the detriment of others and granting them exclusive privileges which could unduly influence the workers' choice of organizations they wish to join.

490. Acknowledging that participation in the Economic and Social Council is limited to the UGT and CC.OO., the complainant raises the question whether the criteria selected by the administration are truly objective and reasonable or whether on the contrary they have an arbitrary, discriminatory and unreasonable effect. The complainant does not, however, challenge the legitimacy of the presence of the two trade union confederations, neither does it question the validity of their participation in the Economic and Social Council, committees and other forums. Rather, it does not accept the fact that the legislative assembly has restricted access to the Economic and Social Council to two trade unions, contrary to the principle, which has been reiterated on a number of occasions by the Constitutional Court, that "the existence of freedom of association is based on a pluralist system; it is the task of trade unions, without distinction under the Constitution, to defend and promote the workers' economic and social interests". Differences in treatment between the different trade unions can only be based on objective, adequate, reasonable and proportional criteria. Lastly, the complainant emphasizes that criteria to determine representativeness are not unique in Spain and that it might comply with those laid down for other autonomous communities.

491. The complainant concludes that the criteria set out for determining the composition of the Economic and Social Council are therefore not objective, adequate, reasonable or proportional, since they do not take into consideration the functions and the territory in which this trade union participation is to take place.

The Government's reply

492. The Government recalls that, under the Constitution, the Autonomous Community of Rioja has sole authority to organize its institutions. Before it established the Economic and Social Council, it had to decide whether it wanted a body with broad participation or a more restricted body. For a number of reasons the second option was chosen. In particular, Rioja is the autonomous community with the smallest number of inhabitants, the second smallest territory and the smallest budget.

493. Since specific criteria were needed to determine the composition of the Economic and Social Council, the legislative body opted for the accepted criterion of "the most representative organizations" embodied in Basic Act No. 11 of 1985 concerning freedom of association. Seen from this angle, the complainant has never represented more than 15 per cent of the workers in the territory of the Autonomous Community of Rioja.

494. The Government notes that Basic Act No. 11 of 1985 concerning freedom of association does not prevent autonomous communities, in the exercise of their prerogatives, from appointing to their bodies, representatives of trade unions that do not meet the criterion of representativeness. But neither is this an obligation.

495. The Government considers that if all the minority trade unions were given a seat on the Economic and Social Council it would have at least 40 councillors, which would be hardly reasonable considering that the Autonomous Community of Rioja has a regional parliament of 33 deputies, a government council of six councillors and a five-member advisory board (the Parliament is the legislative body, the government council the executive, and the advisory board the highest judicial advisory body outside the Government and the public administration).

496. All these reasons explain why criteria were adopted that restricted access to the Economic and Social Council. It was not a gratuitous decision aimed at denying the right to freedom of association, which is a constitutional right under Spanish law, or to render it ineffective, but rather a requirement imposed by the specific characteristics of the Autonomous Community of Rioja.

497. Moreover, the objective nature of this criterion has been recognized in Spain's courts of law. In this regard, the Government refers to the 19 June 1998 ruling of the Appeals Court, when it examined appeal No. 663/13/95 submitted by the complainant, that the Rioja branch of the USO is covered by section 7(2) (trade unions that are merely representative, according to the relevant criteria), and that  as such it may exercise the functions and powers provided for in subparagraphs (b) (collective bargaining within the meaning of the workers' charter), (c) (participation in the determination of the conditions of employment in public administrations by means of the appropriate procedures of consultation or negotiation), (d) (participation in the non-judicial modes of settling labour disputes), (e) (initiating elections of staff representatives and members of works committees and of members of the corresponding organs in public administrations) and (g) (any other representative function that may be specified) of paragraph 3 of section 6 of Basic Act No. 11 of 1985 concerning freedom of association), but not the powers provided for in subparagraph (a) (appearing as institutional representative in dealings with public administrations), where the representative trade unions are the UGT and the CC.OO. The Court concluded that the participation of the UGT and CC.OO. was reasonably and objectively justified, and it was therefore unable to conclude that the complainant's rights had been violated in this respect. However, the Appeals Court declared null and void the creation of the conciliation, mediation and arbitration body provided for in the Pact for Employment on the grounds that it deprived the complainant of its right to take part in the non-judicial modes of settling labour disputes provided for in Basic Act No. 11 of 1985 concerning freedom of association.

498. The Government concludes that Basic Act No. 11 of 1985 concerning freedom of association is a fundamental text that guarantees the exercise of trade union rights under the Spanish Constitution. It argues that the complainant is in fact trying to attack the Basic Act 13 indirectly years after its adoption, through its complaint against Act No. 6/1997 providing for the composition of the Economic and Social Council.

The Committee's conclusions

499. The Committee observes that this complaint relates to the alleged exclusion and marginalization of the complainant as regards the provisions of Basic Act No. 11 of 1985 concerning freedom of association, which lays down the criteria for representativeness, and of Act No. 6 of 1997 concerning the composition of the Economic and Social Council of the Autonomous Community of Rioja.

500. The Committee wishes to refer to the opinion of the Committee of Experts on the Application of Conventions and Recommendations on the scope of the privileges and advantages according to the most representative trade unions [see ILO: Freedom of Association and Collective Bargaining, Report III (Part 4B), International Labour Conference, 81st Session, Geneva, 1994, paras. 97 and 98]:

501. The Committee recalls that it has previously concluded that the provisions of Basic Act No. 11 of 1985 concerning freedom of association are not incompatible with the principles of freedom of association [see 243rd Report, Case No. 1320, para. 116]. More precisely, the Committee notes once again that the criteria laid down in the Basic Act No. 11 of 1985 concerning freedom of association to determine the representativeness of a trade union organization are of a quantitative nature and that, even if they are not deemed to be the most representative, trade unions covering 10 per cent or more of the total number of staff representatives, of members of works committees and of the corresponding organs of public administrations are empowered to exercise certain powers and functions, such as participation in non-judicial modes of settling labour disputes.

502. In this particular case, the Committee is of the opinion that granting the right to sit on the Economic and Social Council only to those trade union organizations deemed to be the most representative under Basic Act No.11 of 1985 would not appear to influence workers unduly in the choice of organization that they wish to join, nor to prevent less representative organizations from defending the interests of their members, organizing their activities and formulating their programmes, notably in the light of paragraph 3 of section 6 of the said Basic Act.

503. The Committee also observes that, although the Appeals Court refused in its ruling in June 1998 to consider as unreasonable the criteria used to select the organizations to be invited to sit on the Council, it did, however, declare null and void the creation of the conciliation, mediation and arbitration body provided for in the Pact for Employment on the grounds that it deprived the complainant of its right to take part in the non-judicial modes of settling labour disputes provided for in Basic Act No. 11 of 1985 concerning freedom of association. This is further proof that it is possible for the complainant to function in such a way as to defend and promote the interests of its members.

The Committee's recommendation

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

Case No. 1956

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

Complaint against the Government of Guinea-Bissau
presented by
the National Organization of Workers of Guinea (UNTG)

Allegations: Detention of trade unionists, declaring
a trade union to be illegal

505. This complaint was contained in a communication from the National Organization of Workers of Guinea (UNTG) dated 19 February 1998. The UNTG sent additional information in communications dated 12 March and 14 April 1998.

506. Due to the Government's lack of information concerning the allegations, the Committee has had to postpone the examination of this case twice. At its June 1998 meeting the Committee called the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1971), it would present a report on the substance of this case at its next session, even if the observations or information requested had not been received in due time [see 310th Report, approved by the Governing Body at its 272nd Session (June 1998), para. 9]. To date, no information has been received from the Government.

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

A. The complainant's allegations

508. In its communications dated 19 February, 12 March and 14 April 1998, the National Organization of Workers of Guinea (UNTG) states that following the incidents that occurred during a spontaneous demonstration on 5 January 1998 by seafarers, legal action was taken with a view to declaring the National Trade Union of Seafarers (SINAMAR) to be illegal and the members of its management committee were detained, including its President, Mr. João Cá. The complainant organization adds that SINAMAR was in no way responsible for the incidents concerned (assault on the National Director of the Maritime and Port Authorities) as the President of SINAMAR, when he learnt of what was happening, asked the seafarers to leave the site of the demonstration. The UNTG indicates that the trade union leaders in question were released three or four days following their detention, but that they are on conditional release and may not exercise their trade union rights.

B. The Committee's conclusions

509. First of all, although it is aware of the problems going on within the country, the Committee regrets that, despite the time that has elapsed since the submission of the complaint, the importance of the allegations, and the fact that the Government has been invited to formulate its comments and observations on a number of occasions, even by way of an urgent appeal, the Government has failed to respond to the allegations made in this case.

510. Given this situation, and in accordance with the applicable procedure [see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session], the Committee is obliged to submit a report on the substance of this case without being able to take into account the information it hoped to receive from the Government.

511. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, while these procedures protect governments against unreasonable accusations, governments for their part must recognize the importance of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward [see First Report of the Committee, para. 31].

512. The Committee observes that in this case the complainant organization alleges that following the incidents that occurred during a spontaneous demonstration by seafarers in January 1998: (1) legal action was taken with a view to declaring the National Trade Union of Seafarers (SINAMAR) to be illegal; and (2) the members of the management committee of SINAMAR were detained, including their President Mr. João Cá (the trade union leaders were released three or four days following their detention, but are on conditional release and may not exercise their trade union rights). The Committee notes the complainant organization's declaration that SINAMAR was not involved in these incidents (assault on the National Director of the Maritime and Port Authorities) and that its President, when he learnt of what was happening, asked the seafarers to leave the site.

513. In this connection, the Committee observes that it does not have the necessary information to enable it to examine the conditions surrounding the demonstration, the exact reasons for the measures that were taken or the precise nature of the incidents that allegedly occurred. This being the case, the Committee requests the Government: (i) to examine the causes motivating legal action taken to declare the trade union organization SINAMAR to be illegal, and that if it is found that this action was initiated without justification, to take the necessary measures to ensure that the legal action is abandoned immediately; and (ii) to ascertain whether any charges have been brought against the trade union leaders of SINAMAR who were detained for three or four days in January 1998, and if it is found that they are being tried without justification, to take the necessary measures to ensure that the charges are immediately lifted and that they can freely exercise their trade union activities. The Committee requests the Government to keep it informed in this connection.

The Committee's recommendations

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

Case No. 1869

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

Complaint against the Government of Latvia
presented by
the International Graphical Federation (IGF)

Allegation: Threat of eviction from union premises

515. The Committee examined this case at its November 1997 meeting [see 308th Report, paras. 481-500, approved by the Governing Body at its 270th Session (November 1997)], at which it drew up interim conclusions.

516. The Government subsequently sent new observations in communications dated 19 June and 11 August 1998.

517. Latvia 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

518. In its previous examination of this case, the Committee considered allegations that the Government had threatened to evict the Latvian Book Industry Trade Union (LGAS) from its rightful premises.

519. At its March 1998 session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

B. The Government's further reply

520. In its communications of 19 June and 11 August 1998, the Government has indicated that the Saeima, the Parliament of the Republic of Latvia, fully understanding the significance of association rights and property rights in a democratic country, adopted the Law on the Restoration of the Real Estate Rights to the Latvian Book Industry Trade Union on 1 April 1998. This Law was signed by the President and entered into force on 16 April 1998.

521. By the adoption of this Law, the property rights of the Latvian Book Industry Trade Union (LGAS) for the real estate -- the building of Lplša Street 43/45 in Riga -- are restored. The State Real Estate Agency is obliged to transfer the property to the Latvian Book Industry Trade Union by 16 July 1998. The Director-General of the State Real Estate Agency formed a commission to take part in the transfer of real estate which has, however, not yet been completed. A translation of the Law on the Restoration of the Real Estate Rights to the Latvian Book Industry Trade Union was attached to the Government's reply and is reproduced in the annex.

C. The Committee's conclusions

522. The Committee welcomes the rapid response by the Government to its recommendations concerning the restoration of property rights to the Latvian Book Industry Trade Union (LGAS) through the adoption on 1 April 1998 of the Law on the Restoration of the Real Estate Rights to the Latvian Book Industry Trade Union.

523. The Committee notes, however, from the Government's communication of 11 August 1998, that the transfer of property to the LGAS, which was to have occurred by 16 July, has not yet been completed. It trusts that the Government will make all efforts to ensure that this transfer will be completed in the very near future and requests the Government to keep it informed of developments in this regard.

The Committee's recommendation

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

Annex

Law on the Restoration of the Real Estate Rights to the
Latvian Book Industry Trade Union

Case No. 1944

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

Complaint against the Government of Peru
presented by
-- the National Federation of Judiciary Workers (FNTPT) and
-- the Federation of Peruvian Electricity and Energy Workers

Allegations: Anti-union dismissals, restrictions on trade union
activities, non observance of an arbitration awards

525. The complaints in this case were included in communications from the National Federation of Judiciary Workers (FNTPT) and the Federation of Peruvian Electricity and Energy Workers dated 30 October 1997 and 1 and 31 July 1998 respectively. The Government sent its observations in communications dated 25 September and 6 October 1998.

526. Peru 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). It has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainants' allegations

527. In its communication dated 30 October 1997, the National Federation of Judiciary Workers (FNTPT) alleges that the Peruvian judicial authorities tried to obstruct the FNTPT's trade union activities, weakening its leadership. More specifically, the FNTPT states that Mr. Mickey Juán Alvarez Aguirre, a legal expert at Lambayeque Supreme Court of Justice, was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress held by the Federation on 23, 24 and 25 February 1996, an election the results of which were duly communicated to the respective judicial authorities.

528. The complainant adds that evidence of the anti-union stance of the judicial authorities can be seen from the fact that on 25 February 1996, the last day of the VIIth Ordinary National Congress of the FNTPT, the judicial authorities published the first "invitation for the voluntary mass resignation of staff" with the intention of intimidating the persons assuming the national trade union leadership. Also, the President of the Lambayeque Supreme Court of Justice, on the basis of decisions issued by an authority lower than the Presidency of the Supreme Court of Justice of the Republic, sought to stop Mr. Alvarez Aguirre from exercising his right to trade union leave of absence, 0stating that he would consult the executive committee of the Judiciary concerning the entitlement to that right. This consultation did not take place.

529. The complainant explains that Mr. Alvarez Aguirre, in his position as trade union leader of the FNTPT, as from 9 April 1996 exercised his right to trade union leave of absence in accordance with Administrative Decision No. 023-A-87-DIGA/PJ, signed by the President of the Supreme Court of Justice of the Republic. This decision grants union authorization to the elected members of the FNTPT with the sole condition of informing the respective Presidents and the personnel office of the Judiciary in a timely manner of the names of its trade union representatives, a requirement that was scrupulously observed.

530. Lastly, the complainant alleges that with the objective of weakening the national leadership of judicial workers, ten months after Mr. Alvarez Aguirre exercised his right to trade union leave of absence, the judicial authorities on 6 February 1997, on the grounds of alleged unjustified absences from the workplace for a period of more than three days, initiated irregular administrative disciplinary proceedings in which he was not allowed to submit a statement, and on 15 March 1997 dismissed him as a reprisal for his election as national trade union leader and for having exercised the trade union leave of absence to which he was entitled.

531. In a communication dated 1 July 1998, the Federation of Peruvian Electricity and Energy Workers alleges that the authorities of the municipality of metropolitan Lima are restricting the exercise of their legitimate activities and discriminating against them. More specifically, the complainant specifies that in October 1995 it decided to establish the Private Higher Technology Institute of Energy and Development (ISTED) domiciled in Lima with the objective of advancing the vocational training of workers in the electricity industry. Given that this decision relates to a lawful activity conducted for the defence and promotion of the professional interests of its members in the sphere of education, in accordance with the country's Constitution and Civil Code, the ISTED obtained its legal personality and was registered as a civil association in the Public Registers of Lima.

532. The complainant adds that in December 1997 the ISTED applied to the municipality of metropolitan Lima for a zoning certificate which constitutes a preliminary authorization to operate and is a prerequisite for the subsequent formalities to be carried out at the Ministry of Education in order to obtain the final authorization to operate. The complainant alleges that the zoning division of the municipality of Lima twice refused to issue the certificate citing inadmissibility. The first time the reason was its physical location (in the old town of Lima), causing the ISTED to move to another part of the city, and the second time was on alleged technical grounds, in spite of the favourable opinion given in both cases by the municipal committee of Lima (PROLIMA), a higher authority than the zoning division.

533. In a communication dated 31 July 1998, the Federation of Peruvian Electricity and Energy Workers alleges that the enterprises Electro Sur Este Ltd. and EGEM Ltd. refused to observe the arbitration award of 29 June 1993 that concluded the collective bargaining process conducted in 1992 and 1993, which awarded a wage increase equivalent to 67 per cent of the basic remuneration in force in June 1992, irrespective of any other increases the Government might grant. Given the position taken by these enterprises, on 27 July 1995 the Federation of Peruvian Electricity and Energy Workers lodged a complaint for the non-observance of the arbitration award in which it sought payment of the amounts stipulated in the award. This claim was found to be substantiated, and the enterprises were ordered to pay the increases stipulated in the award. Subsequently, following an appeal lodged by the enterprises, on 28 October 1996, the Second Civil Court of Cusco declared the decision of the lower court to be null and ordered a new judgement. On 22 June 1998 the Second Court of Cusco handed down a new decision in which it found the claim lodged by the Federation of Peruvian Electricity and Energy Workers to be unsubstantiated. The complainant states that it has lodged a further appeal which is still pending.

B. The Government's reply

534. As regards the allegations presented by the National Federation of Judiciary Workers (FNTPT), the Government states in a communication dated 25 September 1998 that Mr. Mickey Juán Alvarez Aguirre was absent from his workplace on 23, 24 and 25 February 1996, as well as from 8 April 1996 onwards citing the exercise of trade union leave of absence. On 7 April 1996 he was notified of a decision by the President of the Supreme Court of Lambayeque in which he was refused the right to exercise trade union leave of absence and ordered immediately to return to his post, an order which Mr. Alvarez Aguirre declined to obey. Irrespective of the reasons for the denial of trade union leave of absence, the Government states that the Supreme Court's decision is a compulsory order and this being the case, Mr. Alvarez Aguirre should have returned to his post immediately following the notification. Instead of doing so, he confined himself to submitting an internal complaint concerning the denial of leave, and this in turn gave rise to a new notification by the executive committee of the Supreme Court for him to return to work on 11 April 1996, with which he did not comply. For these reasons, on 6 February 1997 administrative disciplinary proceedings were brought against Mr. Alvarez Aguirre resulting in his dismissal on the grounds of unjustified absence for more than three consecutive days, corresponding to 23, 24 and 25 February 1996 and to the interval between April and December of the same year.

535. The Government indicates that while Mr. Alvarez Aguirre contended in defence of his absences that he was a leader of the Workers' Trade Union of the District of Lambayeque, citing Administrative Decision No. 023-A-87-DIGA/PJ, a decision which regulates trade union leave of absence for trade union leaders, section 2 of the decision also stipulates the requirements as regards application and entitlement. According to this provision "The respective organizations shall name the representatives who will exercise their right to this leave, informing the respective Presidents and the personnel office to enable them to take the appropriate administrative measures." In this case, these"administrative measures", adds the Government, consisted of the refusal to grant the leave given that the judiciary was undergoing a process of restructuring which had resulted in resignations and staff reductions. Lastly, the Government concludes by saying that the refusal to grant trade union leave of absence to Mr. Alvarez Aguirre was due to service requirements and not to anti-union policies.

536. With respect to the allegation of the Federation of Peruvian Electricity and Energy Workers, condemning the municipality of metropolitan Lima's refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate and inhibiting the exercise of its legitimate activities, the Government indicates in its communication of 6 October 1998 that the refusal was based solely on the fact that ISTED did not have the legal requirements necessary to function as a higher professional training centre, and not on anti-union grounds. The Government adds that on 25 June 1998, ISTED lodged an appeal for review of the decision, and that the decision has not yet been handed down by the zoning division of the municipality of Lima; clearly if ISTED fulfils the legal requirements, the certificate will be issued.

537. Furthermore, with respect to the allegation of the Federation of Peruvian Electricity and Energy Workers regarding the refusal of the enterprises Electro Sur Este Ltd and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Government states in its communication of 6 October 1998 that this matter has been the subject of an inquiry by the judicial authorities, however, no final decision has yet been pronounced. The Government notes that, as the complainants has indicated, the Federation of Peruvian Electricity and Energy Workers, as well as both enterprises, had appealed the decisions of the judicial authorities; however, the final appeal lodged by the complainants against the decision declaring the application irreceivable is still pending before the Second Civil Chamber of Cusco.

C. The Committee's conclusions

538. The Committee observes that in this case the complainant organization alleged violations of freedom of association relating to: (1) the refusal to recognize trade union leave of absence for a trade union leader and his subsequent unjustified dismissal for alleged absence from his workplace; (2) restrictions on the exercise of the legitimate activities of a trade union organization; (3) the non-observance by two enterprises of an arbitration award which had been the culmination of a collective bargaining process.

539. As regards the allegations made by the National Federation of Judiciary Workers (FNTPT), the Committee notes that Mr. Mickey Juán Alvarez Aguirre was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress held on 23, 24 and 25 February 1996, an election, the results of which were duly communicated to the respective judicial authorities, an allegation that the Government did not deny. The Committee also notes that, according to the complainant, from 9 April 1996 onwards Mr. Alvarez Aguirre exercised his right to trade union leave of absence in accordance with Administrative Decision No. 023-A-87-DIGA/PJ, which grants union authorization to the elected representatives of the FNTPT, with the sole condition of informing the respective judicial authorities in a timely manner of the names of their trade union representatives, a requirement that was met.

540. Furthermore, the Committee notes the Government's statement that the judicial authority refused to grant the trade union leave of absence to Mr. Alvarez Aguirre given the fact that the judiciary was undergoing a process of restructuring involving staff reductions, and that the administrative proceedings brought against Mr. Alvarez Aguirre on 6 February 1997, which resulted in his dismissal, were due to his unjustified absence on 23, 24 and 25 February 1996 and to the interval between April and December of the same year.

541. In this connection, the Committee observes that 23, 24 and 25 February 1996, the period described by the Government as an unjustified absence by Mr. Alvarez Aguirre, are the dates on which the Congress was held which elected him national leader of the FNTPT. The Committee also observes that the administrative proceedings brought in February 1997 against Mr. Alvarez Aguirre, which resulted in his dismissal, occurred almost ten months after he exercised his right to trade union leave of absence.

542. In these circumstances, the Committee wishes to remind the Government that in accordance with Article 6, paragraph 1, of Convention No. 151, ratified by Peru, "Such facilities shall be afforded to the representatives of recognized public employees' organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work". Furthermore, "when examining an allegation concerning the denial of time off to participate in trade union meetings, the Committee recalled that ... subparagraph 2 of Paragraph 10 [of the Workers' Representatives Recommendation, 1971 (No. 143)] ... specifies that while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld" [see Digest of Decisions and Principles of the Freedom of Association Committee, 4th edition, 1996, para. 952].

543. The Committee also 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 (...) and in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom" [see Digest, op. cit., para. 724].

544. In the light of these principles, the Committee requests the Government to take the necessary measures to ensure that Mr. Mickey Juán Alvarez Aguirre, who was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress in February 1996, is reinstated in his job without loss of acquired benefits and that he is once again able to exercise his trade union responsibilities rapidly and without impediment. The Committee requests the Government to keep it informed about the issues raised and to take the appropriate measures to ensure that in future the restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination.

545. Concerning the allegation of the Federation of Peruvian Electricity and Energy Workers with respect to the refusal of the municipality of metropolitan Lima to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Committee notes the Government's submission that the refusal was based solely on the fact that ISTED did not have the legal requirements necessary to function as a higher professional training centre, and not on anti-union grounds, pending the decision on the appeal lodged by ISTED. The Committee trusts that the decision rendered in respect of the appeal made by the Federation of Peruvian Electricity and Energy Workers will reflect the principles of freedom of association and requests the Government to keep it informed of the outcome of the appeal, as well as any element which would clarify the situation in respect of the legal requirements mentioned above.

546. Furthermore, with respect to the allegation of the Federation of Peruvian Electricity and Energy Workers concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Committee, noting that both parties have appealed the decision and that the final appeal lodged by the complainant is still pending, recalls "the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations", and that "[a]greements should be binding on the parties". [See Digest, op. cit., paras.81 and 818.] The Committee requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.

The Committee's recommendations

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

Geneva, 12 June 1998.

(Signed)   Max Rood,
Chairman.

 

1. The complainant explains that, until 1993 the majority of primary and lower-secondary school employees were covered by the Danish Act on Civil Servants in the State, the Primary and Lower-secondary School System and the Danish National Church. In addition, there was a small group who typically were employed on civil servant conditions of some kind. In 1993, the employment conditions of the primary and lower-secondary school system were changed. The right to negotiate was transferred from the Danish State to the local authorities, and future employees were to be employed on collective agreement terms. Civil servants already employed by the State maintained a special status according to the Danish Act on Civil Servants in the Primary and Lower-secondary School System. This group of civil servants is called the "closed group" because it is characterized by being restricted to persons employed in a civil servant position before 1 April 1993. The special status is maintained, also in the case of a change of position, until the position ceases.


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

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