GB.275/4/1 - Governing Body

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 27 and 28 May and 4 June 1999, under the chairmanship of Professor Max Rood.

2. The member of Argentinian nationality was not present during the examination of the case relating to Argentina (Case No. 1939).

* * *

3. It is with great sadness that the Committee learnt of the death of Mr. Alfonso Sánchez Madariaga. Titular Worker member of the Committee on Freedom of Association for over 40 years, Mr. Sánchez Madariaga brought to the Committee his enormous experience as a national and international trade union leader as well as his unshakable belief in the ideals of the International Labour Organization. He had enormous belief in the principles of freedom of association as well as a strong sense of compromise, thereby contributing greatly to the work of the Organization in the domain of freedom of association. The Committee shares the grief felt by his family.

* * *

4. Currently, there are 78 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 23 cases on the merits, reaching definitive conclusions in 13 cases and interim conclusions in ten cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

5. The Committee adjourned until its next meeting the examination of the following cases: Nos. 2013 (Mexico), 2014 (Uruguay), 2015 (Colombia), 2017 (Guatemala), 2018 (Ukraine), 2019 (Swaziland), 2020 (Nicaragua), 2021 (Guatemala), 2022 (New Zealand), 2023 (Cape Verde), 2024 (Costa Rica), 2025 (Canada/Ontario), 2026 (United States) and 2027 (Zimbabwe) 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.

Observations requested from governments

6. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1880 (Peru), 1959 (United Kingdom/Bermuda), 1995 (Cameroon), 2006 (Pakistan), 2007 (Bolivia) and 2008 (Guatemala). In Case No. 2006 (Pakistan), the Government stated that it would send its observations shortly.

Observations requested from governments
and/or complainants

7. In Case No. 1943 (Canada/Ontario) the Committee has still not received the complainant's comments. It requests the complainant to send them without delay, in the absence of which it will proceed to examine the case on the basis of the information actually at its disposal. In Case No. 1963 (Australia), the Committee invited the Government and the complainant to forward any additional information in time for the Committee to examine the case at its next session in November 1999.

Partial information received from governments

8. In Cases Nos. 1835 (Czech Republic), 1953 (Argentina), 1961 (Cuba), 1998 (Bangladesh) and 2001 (Ukraine), 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 the facts.

Observations received from governments

9. As regards Cases Nos. 1931 (Panama), 1965 (Panama), 1974 (Mexico), 1976 (Zambia), 1991 (Japan), 1994 (Senegal), 1999 (Canada/Saskatchewan), 2003 (Peru), 2004 (Peru), 2009 (Mauritius), 2012 (Russian Federation) and 2016 (Brazil), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Complaint under article 26 of the ILO Constitution

10. At its March 1999 meeting, the Committee examined cases concerning Colombia (Nos. 1787, 1948, 1955, 1962, 1964 and 1973) as well as a complaint on the non-compliance by Colombia of 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), presented by a number of delegates at the 86th Session (1998) of the Conference pursuant to article 26 of the ILO Constitution [see 314th Report, paras. 1-141]. In approving the report, the Governing Body decided to postpone to its November 1999 session its decision as to the establishment of a commission of inquiry and the designation of its members. However, the Committee requests the Government to furnish a detailed report prior to 1 September 1999 so as to enable it to present a new report on the merits of the case to the Governing Body at its November 1999 session.

Urgent appeals

11. As regards Cases Nos. 1851 (Djibouti), 1922 (Djibouti), 1978 (Gabon), 1980 (Luxembourg), 1986 (Venezuela), 1993 (Venezuela) and 2005 (Central African Republic), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the cases, it has not received the complete observations of the governments concerned. The Committee draws the attention of the governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases if their complete observations or information have not been received in due time. The Committee accordingly requests these governments to transmit their observations or information as a matter of urgency.

Missions

12. The Committee was informed that a mission, led by its Chairperson, Professor Max Rood, accompanied by Mr. Bernard Gernigon, Chief of Freedom of Association Branch, and Ms. Deepa Rishikesh, a legal officer of the said Branch, was carried out in the Republic of Korea from 12 to 17 April 1999; its mandate was to examine, following the February 1998 high-level tripartite mission, the problems in implementing the Committee's recommendations formulated in Case No. 1865. The Committee requests the Government to furnish its observations on pending allegations so as to enable it to examine the case at its next session.

13. In Case No. 2011 (Estonia), the Government requested that a technical mission be carried out in order to find a solution to questions related to freedom of association principles. The Committee notes that appropriate contacts will be established during the Conference so to specify the terms of such a mission.

Withdrawal of a complaint

14. In Case No. 1990 (Mexico), the complainant, the Progressive Trade Union of Free Trade Zones of the Republic of Mexico, stated, in a communication dated 22 April 1999, that it wished to withdraw its complaint. Observing that the complainant itself specified that the withdrawal came after the settlement of the questions raised in the case, the Committee has decided to close the matter.

* * *

Transmission of cases to the Committee of Experts

15. 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: Cases Nos. 1773 (Indonesia), 1900 (Canada/Ontario), 1958 (Denmark), 1975 (Canada), 1989 (Bulgaria) and 1996 (Uganda).

* * *

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

Case No. 1867 (Argentina)

16. At its June 1998 session, the Committee once again requested the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post, and if this is not possible because of the time which has elapsed, to ensure that he is fully compensated [see 313th Report, paras. 12-15]. In its communication dated 12 May 1999, the Government indicates that the recommendation of the Committee in this case has been communicated to the Director-General of Labour of the Province of Salta but that he has not yet replied. The Committee notes this information and reiterates its previous recommendations and requests the Government to send it a copy of the reply of the provincial authority as soon as it is delivered.

Case No. 1862 (Bangladesh)

17. At its November 1998 meeting when it last examined this case, the Committee requested the Government to keep it informed of the measures taken to: (a) amend the Industrial Relations Ordinance, 1969 (IRO), to remove the requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments in order for a union to be registered; (b) register the union of workers at Saladin Garments Ltd. The Committee had also requested the Government to inform it of the results of inquiries into the trade union situation at the Palmal Knitwear Factory Ltd. and the outcome of the cases filed by several activists and members of the Bangladesh Independent Garment Workers' Union (BIGU) following anti-union reprisals, as well as concerning the employment situation of Ms. Kalpana at the Palmal factory [see 311th Report, paras. 12-16].

18. In a communication dated 7 March 1999, the Government states with regard to the amendment of the IRO requested by the Committee that the employers and trade union leaders (with a few exceptions) are of the opinion that the requirement of 30 per cent of all workers in an establishment for registration of a trade union is in conformity with Conventions Nos. 87 and 98. According to the Government, the welfare of working people is an important issue, while it is not important to increase the number of unions in an establishment. Past and present experience illustrates that the higher the number of unions in an establishment, the more clashes and disputes occur while productivity decreases.

19. The Committee notes with regret the Government's opposition to any change in this matter and emphasizes once again that for several years now the Committee of Experts on the Application of Conventions and Recommendations has been urging the Government to review sections 7(2) and 10(1)(g) of the IRO to bring them into conformity with the requirements of the Convention (see observation, page 212 of the English text of Report III (Part 1A) of 1999). In this respect, the Committee on Freedom of Association notes that a Government representative to the Conference Committee on the Application of Standards stated in June 1998 that the Government was considering taking measures concerning these provisions. Like the Committee of Experts, the Committee can only urge the Government once again to review the situation, since the figure of 30 per cent in both small and large enterprises is excessive and considerably hinders the establishment of trade union organizations to defend workers' interests.

20. As regards the application for registration of the union established in the Saladin Garments Ltd. enterprise filed on 9 April 1996, the Government states once again that the Registrar rejected it on the ground that the union failed to fulfil the registration requirements. The union appealed to the Labour Court to direct the Registrar to register it, but the case is still pending and no other union has come forward for registration.

21. The Committee regrets that the registration of this trade union, for which the workers of Saladin Garments Ltd. have been applying for over three years, has still not taken place. It recalls that by ratifying Convention No. 87 the Government undertook to give effect to Article 2 thereof, i.e. to afford workers, without distinction whatsoever, the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee urges the Government to ensure that the union of workers of the Saladin Garments Ltd. enterprise is registered without delay and to keep it informed in this regard.

22. Concerning the results of the inquiries into the trade union situation in the Palmal Knitwear Factory Ltd., the Government explains that a union under the name of Palmal Knitwear Factory Ltd. Karmachari union was formed and applied for registration to the Registrar of Trade Unions, who refused it, requesting the union to rectify certain defects, which the union failed to do. The Registrar then refused the application for registration and the union appealed against this decision to the Labour Court. The employer also applied to be a contestant against the union. The Court did not allow the employer to be a contestant, and the latter filed a writ petition in the High Court Division of the Supreme Court, which is still pending. In this case also, the Committee urges the Government to ensure that the Palmal Knitwear Ltd. Karmachari union is registered without delay, and requests the Government to keep it informed in this regard.

23. Finally, the Government provides information on the proceedings under way concerning the cases filed by the trade union activists and members of the BIGU who were victims of anti-union reprisals, including Ms. Kalpana of the Palmal factory. The Committee notes this information and requests the Government to continue supplying additional information on the appeals that are still pending, including that of Ms. Kalpana, and to take all the necessary measures to ensure that the union activists and members who have been dismissed, harassed or blacklisted because of their membership of a trade union in the garment sector obtain redress and are reinstated in their jobs, if they so wish.

Case No. 1957 (Bulgaria)

24. The Committee last examined this case at its November 1998 meeting. The Committee requested the Government to take steps without delay to ensure that all the property confiscated from the complainant would be returned to it. With respect to the allocation of premises to the GMH, the Committee invited the complainant to request that premises be allocated to it under the terms of the State Property Law, as the Government had suggested.

25. In a communication of 3 December 1998, the complainant states that no constructive proposal to solve this problem has yet emerged and in fact the district administration has intensified the conflict by ordering GMH to report on 9 December 1998 to receive some personal effects and threatening court action. The letter from the District Governor dated 23 November 1998 is attached to the complainant's communication. The complainant states that in the letter the complaint before the ILO is stated to be groundless and unlawful, that the complainant has committed some unlawful self-governing actions, which the complainant denies, and the letter does not address the issue of the return of the movable property, money and documentation of the GMH. The complainant states further that the letter does not address the Government's obligations under the labour legislation or the Committee's recommendations.

26. The Government forwarded its response to the further information provided by the complainant in a communication of 8 April 1999. The Government states that as a result of the legal eviction executed pursuant to Ordinance No. RD15-207 of 11 June 1997, the GMH was deprived of use of the premises in question. The Ordinance was executed on 15 July 1997 with no representative of GMH being present. The refusal of the President of the GMH to receive a copy of the Ordinance was certified in accordance with Bulgarian law. The premises were granted to the Ministry of Trade which obtained them on legal grounds with a due protocol by a commission appointed by the Minister of Trade for this purpose. In view of the absence of a representative of GMH, and in an effort to facilitate the use of the premises, all the office equipment and documentation belonging to GMH was locked and sealed in one of the rooms. The Government asserts that the reason for this action was not to limit GMH's access to the equipment and the documentation, but to ensure their safe-keeping while the new occupants were moving in. The Government states further that keeping this property safe and intact results in the premises not being used fully, thus entailing much unnecessary expense. According to the Government, in an effort to avoid this and as an act of good will, the district authorities sent the letter referred to by the complainant inviting the President of GMH to take away the organization's property on the date set by the present occupier of the premises. The President did not respond to this invitation. The Government states further that in view of this unreasonable lack of cooperation, and not able to react in any other way, the District Governor finalized his legal obligations by putting into force Decision No. 394 of 1 October 1993 of the Council of Ministers revoking the permission for GMH to occupy the property in question.

27. The Committee notes that according to the letter of 23 November 1998 from the District Governor to the President of the GMH, the Government rejects the complainant's claim for the continued use of the premises, and describes the allegations in the complaint to the Committee as "groundless and unlawful". The Committee must recall the principle that "in a situation in which workers' organizations consider that they do not enjoy the freedoms essential for the performance of their functions, they should be entitled to demand the recognition of these freedoms and such claims should be considered to form part of legitimate trade union activities" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 28]. The Committee notes the non-conciliatory tenor of the letter generally. In the letter, the complainant is accused of having violated the law as a result of "self-governing actions". The nature of these actions is not specified. While the letter goes on to invite the President of the GMH to a meeting at an appointed time to take back possession of the personal items, it also states that refusing to attend will result in the matter being brought before the courts and the prosecutor's office. The Committee must urge the Government to make constructive efforts, without delay, to ensure that all the property confiscated from the complainant is returned to it. With respect to the allocation of the premises, the Committee again invites the complainant to request such allocation pursuant to the State Property Law, and requests the Government to look favourably upon such a request despite the fact that Decision No. 394 has been put into force. It further requests the Government to keep the Committee informed in this regard.

Case No. 1900 (Canada/Ontario)

28. The Committee last examined this case at its November 1997 and March 1998 meetings where it requested the Government, inter alia, to take the necessary measures to ensure that agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors all enjoyed the protection necessary to establish and join organizations of their own choosing [see 308th Report, para. 194 and 309th Report, para. 11].

29. In a communication dated 16 March 1999, the Government recalls that the Ontario Court General Division dismissed on 9 December 1997 the application that was made on behalf of the United Food and Commercial Workers International Union (UFCW) for an order striking down the repeal of the Agricultural Labour Relations Act, 1994, which had as a result the exclusion of agricultural workers from Ontario's statutory labour relations scheme. This case was brought before the Ontario Court of Appeal; on 26 January 1999 the appeal was dismissed, the Court of Appeal upholding the General Division Court's decision which had previously concluded that the exclusion of agricultural workers from Ontario's statutory labour relations scheme did not violate their freedom of association, or their right to equal protection and equal benefit of the law guaranteed by constitutional provisions. The Committee takes note of this information.

30. The Government otherwise indicates that there is no further development worth mentioning in this case. However, it reiterates its beliefs that there are legitimate reasons for the exclusion of certain workers from the Labour Relations Act (LRA) statutory bargaining rights since Canadian labour laws originally enacted with industrial settings in mind are not always suitable for non-industrial workplaces. Moreover, the Government insists on the fact that such excluded categories of workers continue to be free to form voluntary association or unions or to bargain collectively with their employers outside the statutory legal framework. Noting this information, the Committee reiterates its insistence on the necessity for all workers without distinction whatsoever -- and especially for categories of workers traditionally known as more vulnerable -- to be able to organize freely, fully exercise all related rights and enjoy the necessary protection elaborated within the purview of freedom of association principles. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1945 (Chile)

31. At its meeting in November 1998, the Committee examined allegations concerning the dismissal of the trade union leaders Mr. Sergio Antonio Cea Valenzuela, Mr. Sergio Silva Pérez and Mr. Jorge Muñoz Llanos of the security transport company Brink's of Chile S.A. The Government sent extensive documentation and details of the various court rulings rejecting these unionists' complaints and indicated that the ruling of the First Labour Tribunal of Valparaíso, rejecting the evidence regarding their status as workers and trade union leaders, was under appeal. The Committee requested the Government to keep it informed of the outcome of the appeal proceedings [see 311th Report, paras. 32, 33 and 34].

32. In a communication dated 2 March 1999, the Government stated that on 28 August 1998, the Valparaíso Court of Appeal rejected the application by Mr. Cea Valenzuela, Mr. Silva Pérez and Mr. Muñoz Llanos and upheld the lower court's ruling. On 4 September 1998, the lawyers acting on behalf of the union leaders applied to the Valparaíso Court of Appeal for clarification, expansion or correction of its ruling of 28 August 1998, with a view to obtaining clarification on certain questionable points and rectifying certain errors which in their view the ruling contained. On 29 September 1998, the Valparaíso Court of Appeal rejected this application. On 16 September 1998, the lawyers acting for the union leaders applied to the Supreme Court, through the Valparaíso Court of Appeal, for a ruling to set aside the ruling of 28 August on the grounds that it was contradictory. On 29 October 1998, the Supreme Court reviewed the application and ruled it to be inadmissible. On 20 November 1998, the Supreme Court issued an implementation order in respect of the ruling handed down by the Court of Appeal, which thus became an enforceable judgement against which no further appeals could be made.

33. The Committee takes note of this information and of the contents of the court rulings according to which the persons concerned did not have the status of trade union leaders at the time of their dismissals and consequently did not enjoy special protection.

Case No. 1925 (Colombia)

34. At its March 1998 meeting, the Committee formulated the following recommendations concerning the allegations that were still pending [see 309th Report, para. 119]:

(a) The Committee requests the Government to transmit the decision concerning the fine imposed upon the company Avianca-Sam-Helicol for having applied a status of "not unionized" to the workers and to confirm that this type of anti-union discrimination practice has ceased. It further requests the Government to keep it informed of the investigations into violations of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.

(b) As regards the dismissal of trade union officers from the union's subsidiary office at Cundinamarca (Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members from the operations area at Eldorado Airport in Bogotá, the Committee requests the Government to take all steps forthwith to begin an investigation into the matter and, if it is found that the union officers and members in question were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of this investigation.

(c) As regards the failure after 15 December 1996 to deduct trade union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that non-payment of union dues can result in serious financial difficulties for trade union organizations and requests the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the substantive Labour Code. The Committee requests the Government to keep it informed in this connection.

(d) As regards the allegations concerning the suspension of a permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with a collective agreement, and the withdrawal on 7 November 1995 of recognition as SINTRAVA representatives from members of the union's National Council, the Committee requests the Government to take steps to ensure that an investigation is conducted into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.

35. In communications of June 1998 and March 1999, the SINTRAVA sent the following additional information:

(a) As regards the application of a "not unionized" status to the workers, the complainant states that after the Avianca-Sam-Helicol enterprise had been fined by the Government for this type of anti-union practice, the management immediately changed its name to "Extra-legal Benefit Plan". Like the former status, the plan is applied in a compulsory manner by the enterprise to the workers covered by the collective agreement, by means of handouts (housing credits or loans for family emergencies); workers who do not accept the plan are dismissed, as was the case of Ms. Gloria Carvajal Beltrán, who was dismissed for having refused the benefits under the plan. As regards the violation of section 140 of the Labour Code (remuneration paid when the worker does not work), the complainant states that the enterprise continues to apply this provision, since the following trade union officers of Avianca have now been subjected to this measure: Carlos Alberto Enríquez, Iván Eduardo Cortés and María Mercedes Sierra (SINTRAVA, Calí section), Melba Florián and Joaquín Herrera (SINTRAVA, Medellín section), Alejandro Angel Ferrer Carvajal, José de los Santos de Avila Cedros and Rubén Jiménez (SINTRAVA, Barranquilla section).

(b) As regards the dismissal of trade union officers of the union's subsidiary office in Cundinamarca, the complainant states that only trade union officer Euclides Arandia has been reinstated; as regards José Angel Cupita and Rosalía Delgado, faced with the enterprise's refusal to reinstate them, they were obliged to reach an economic agreement; as regards Rubén Darío Leal, Jorge Cordoba, Luis Cruz, Gabriel San Juan and the 16 trade union members from the operations area at Eldorado airport in Bogotá, all of them are awaiting a judicial decision.

(c) As regards the failure to deduct trade union dues, the SINTRAVA states that the enterprise continues to refuse to deduct them.

(d) As regards the allegations concerning the suspension of the permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with the collective agreement, the enterprise still refuses to recognize it.

(e) The complainant points out that the management of Avianca has ignored requests to hold meetings of the commissions provided for by the agreement, launching smear campaigns against the union to persuade the workers that they do not need trade union representatives to solve their problems.

(f) The SINTRAVA alleges that trade union officers and members continue to be unfairly dismissed, as may be seen from the following dismissals: Marlen Astudillo, Gloria López, Aida Luz Montes, Bernardo Lozano, David Beltrán, Luis Bernardo Díaz, William Rojas and Arcesio Beltrán (unionized workers of the Calí base); Santander Gonzalez, Ismael Ponce and Andres Camargo (trade union officers of the Colombian Association of Helicopter Technicians (ASCOTHEL)); all the officers of the Colombian Association of Aviation Mechanics (ACMA) and SINTRAVA union officer Mr. Amarildo Maldonado.

(g) Lastly, the complainant alleges that the enterprise does not allow its officers access to the installations of the enterprise in order to carry out their trade union functions.

36. In a communication dated 15 January 1999, the Government sent partial information on the follow-up to the Committee's recommendations. As regards the application of a "not unionized" status to the workers, the Government points out that in addition to a fine of 80 times the minimum wage being imposed on the enterprise, as already mentioned, for having violated section 354 of the Substantive Labour Code, in August 1998 copies of the resolutions by which the Ministry of Labour and Social Security imposed sanctions on Avianca were forwarded to the Public Prosecutor's Office of Bogotá in order for it to take appropriate action, since under the Penal Code this type of action may in some cases constitute an offence. The Committee requests the Government to inform it whether any action has been taken by the Public Prosector's Office of Bogotá in this respect and to send without delay its observations on the allegations that the management of Avianca is still applying the "not unionized" status under the new name "Extra-legal Benefit Plan" and that Ms. Gloria Carvajal Beltrán was dismissed for having refused the benefits under the plan.

37. As regards the violation of section 140 of the Labour Code (remuneration without work), the Government states that as a result of the inquiry which was carried out, the enterprise was fined 30 times the minimum wage. The Committee takes due note of its reply and requests the Government to send it without delay information concerning the allegations to the effect that the enterprise has applied this provision to Avianca trade union officers Carlos Alberto Enríquez, Iván Eduardo Cortés and María Mercedes Sierra (SINTRAVA, Calí section), Melba Florían and Joaquín Herrera (SINTRAVA, Medellín section), Alejandro Angel Ferrer Carvajal, José de los Santos de Avila Cedros and Rubén Jiménez (SINTRAVA, Barranquilla section).

38. As regards the dismissal of trade union officers of the union's subsidiary office in Cundinamarca and the 16 trade union members from of the operations area at Eldorado airport in Bogotá, the Government points out that it is not for the Ministry of Labour to judge whether such dismissals are legal, but for the labour courts, and that, moreover, the workers affected have already initiated proceedings before the competent labour courts. In this respect, the Committee regrets that the Government has not carried out an inquiry to determine whether these dismissals were carried out on anti-union grounds. The Committee recalls that "where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 754].

39. The Committee notes with regret that, according to the information provided by the complainant, only the trade union officer Euclides Arandia has been reinstated and that José Angel Cupita and Rosalía Delgado, faced with the enterprise's refusal to reinstate them, were obliged to reach an economic agreement. As regards Rubén Darío Leal, Jorge Cordoba, Luis Cruz, Gabriel San Juan and the 16 trade union members from the operations area at the Eldorado airport in Bogotá, the Committee requests the Government to inform it as soon as possible of the outcome of the proceedings instituted by the trade union officers and members before the labour courts.

40. As regards the failure to deduct trade union dues for the complainant, the Government states that the inquiry carried out by the Ministry of Labour and Social Security resulted in the enterprise being fined for violation of section 400 of the Substantive Labour Code, which provides for the obligation of the enterprise to deduct trade union dues. The Committee notes this information and, considering that the complainant states that the enterprise, despite a fine having been imposed, still refuses to make such deductions, requests the Government to take the necessary steps to ensure that Avianca complies with the provisions of section 400 of the Substantive Labour Code and to keep it informed in this connection.

41. As regards the allegations concerning the suspension of the permanent trade union licence granted to the union's subsidiary office in Cundinamarca under the collective agreement, the Government states that the Ministry of Labour and Social Security has already initiated an inquiry. In this respect, the Committee requests the Government to inform it as soon as possible of the outcome of this inquiry.

42. As regards the new allegations concerning: (a) the enterprise's ignoring requests to convene a meeting of the commissions provided for by the collective agreement; (d) the unfair dismissals of Marlen Astudillo, Gloria López, Aida Luz Montes, Bernardo Lozano, David Beltrán, Luis Bernardo Díaz, William Rojas and Arcesio Beltrán (unionized workers of the Calí base), of Santander Gonzales, Ismael Ponce and Andres Camargo (trade union officers of the Colombian Association of Helicopter Technicians (ASCOTHEL)), of all the officers of the Colombian Association of Aviation Mechanics (ACMA) and the SINTRAVA union officer Amarildo Maldonado; and (c) the denial of access by the enterprise to SINTRAVA officers to the installations of the enterprise in order to carry out their trade union functions, the Committee requests the Government to send it information in this connection without delay.

Case No. 1966 (Costa Rica)

43. At its meeting of November 1998, the Committee made the following recommendations on the allegations pending [see 311th Report, para. 365]:

(a) 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 in Case No. 1879 relating to the enterprise FERTICA SA. It requests the Government to ensure that those dismissed because of their trade union office or membership are reinstated (all the members of the executive board of the workers' association and 265 members have been dismissed) and that the collective agreement is implemented. The Committee requests the Government to keep it informed in this respect.

(b) The Committee expresses its concern at the slowness, noting that the long delay in deciding proceedings amounts to a denial of justice, and inefficiency of the proceedings on allegations of anti-trade union discrimination in a considerable number of cases and requests the Government to take the measures necessary to ensure the speedy conduct of proceedings.

(c) The Committee deeply deplores that the enterprise FERTICA SA has once again engaged in anti-union practices and urges the Government to take the measures necessary to ensure that it recognizes the legitimate executive board of the Association of Workers of FERTICA SA (ATFe) and hand over all its members' union dues. Furthermore, recalling that the intervention of an employer to promote the constitution of the executive board of a trade union and interference with its correspondence are acts that constitute a grave violation of the principle of freedom of association, the Committee requests the Government to take measures to ensure that such acts are not repeated in the future and to guarantee the rights of the legitimate executive board.

(d) Noting that the administrative authorities confirmed in 1998 the extension of the collective agreement in force, the Committee requests the Government to ensure that the enterprise FERTICA SA honours that collective agreement.

(e) With regard to the allegations concerning: prohibition of entry by ATFe union officials into the premises of the company, and the prohibition from holding demonstrations, meetings and assemblies in the usual places; the dismissals alleged to have occurred in FERTICA SA on grounds of social and economic dispute despite the existence of a judicial order that such dismissals should not take place; promoting of the constitution of the SITRAFER trade union organization in FERTICA SA; the disappearance of the pension that had been established by the collective agreement and which was the property of the workers, the Committee requests the Government to take the measures necessary to conduct detailed investigations without delay into all the allegations and to ensure that the judicial orders stating that dismissals in FERTICA SA should not take place are respected and to keep it informed of the result of those investigations.

44. In its communication of 18 January and 22 March 1999, the Government states that as regards the alleged non-compliance with the Committee's recommendations requesting the reinstatement of trade union officials and members and the implementation of the collective agreement in the FERTICA SA enterprise, as indicated in its previous replies, the Government fulfilled its function as mediator, in particular in several meetings with the parties, and providing a timely response, by means of the conciliation machinery available under the legal system in force, to each of the Committee's recommendations. It has repeatedly urged the parties to comply with those recommendations, without at any time claiming the authority to impose measures which are the responsibility of the courts of law (the reinstatement of the workers in question who were dismissed because of their trade union office is a matter which is the exclusive competence of the courts). In particular, the Minister of Labour and Social Security, in communication DMTA.MB-210 dated 7 September 1998, invited the general manager of FERTICA and the secretary-general of ATFe to an administrative conciliation meeting, which was held on 21 September 1998, with a view to reaching an agreement on the recommendations concerning the reinstatement of the workers dismissed as well as compliance with the collective agreement. The arguments put forward by the employer against such a course of action included the statement that the dismissals of the trade union officials were made under the provisions of the collective agreement and before the latter was denounced by the ATFe. The Government also refers to a meeting that took place on 18 March 1998 between the parties and the head of labour matters of the Ministry of Labour and Social Security. During the meeting, the enterprise rejected the conciliation initiative undertaken by the ministry to examine issues similar to those examined by the Committee in Case No. 1879 and which are the subject of various judicial proceedings. Moreover, the Ministry of Labour issued an administrative guideline to the competent ministerial bodies requiring them once again to take all the necessary steps to urge the parties in dispute to reach a solution and to try to secure the reinstatement of all the dismissed workers in their workplaces and compliance with the collective agreement.

45. As regards the Committee's recommendations concerning the slowness of justice, the Government states that the Committee's report was transmitted to the President of the Supreme Court of Justice and high-ranking members of the judiciary have been reminded of the ILO principle in the sphere of freedom of association that justice should be both speedy and seen to be done. Furthermore, on 15 May 1998 the present Minister of Labour and Social Security issued circular DMT-063-98 which reminded the competent ministerial authorities of their obligation to apply in a speedy manner, within a period of two months and without prejudice to the rights resulting from the principles of due process and legitimate defence, the applicable procedure in cases of anti-union discrimination. This time limit was established by the Constitutional Court, in decision No. 4298-97 of 23 July 1997. According to this jurisprudence, in cases of suspected trade union persecution and unfair labour practices, the task of the Ministry is to determine whether or not there are grounds for a denunciation to be made to the competent courts by the Director-General of Labour (the latter's decision may be appealed to the Ministry of Labour), with a period of two months being established for the completion of the administrative inquiry. According to the Government, it is the parties in dispute who have been mainly responsible for delaying the proceedings through the use of delaying tactics and procedures facilitated by due process. Moreover, the Government emphasized its unequivocal readiness to address the Committee's concern about the supposed slowness of justice in administrative proceedings on unfair labour practices.

46. Furthermore, the Government states that it deplores all the anti-union practices which infringe the rights of the workers in the FERTICA SA enterprise and it recalls in this respect that the Ministry of Labour and Social Security has confirmed at the administrative level the validity of the collective agreement signed on 15 September 1994 between FERTICA SA and AFTe. This constitutes a clear recognition of the current executive board of this organization, which has been duly registered.

47. As regards the handing over of members' union dues, the Ministry of Labour and Social Security intervened in the matter on 21 September 1998 with a view to ensuring that the employer change its practice regarding the handing over of members' union dues. However, the employer claimed that since the supposed representation of the ATFe trade union in the person of Marco Antonio Guzmán Rodríguez is being challenged in the ordinary labour court by Messrs. Tomás Alberto Cortés Gómez and Oscar Fernández Salazar, FERTICA SA has transferred the said trade union dues to the Trade Union of Workers of FERTICA, the legal personality of which is recorded in the register of the Ministry of Labour. Moreover, the employer states that the different legal cases related to the matters in hand are still under way. As a result, the Minister of Labour has instructed the competent labour authorities to study and ensure the application of all labour legislation, with a view to establishing a harmonious relationship between the employer and employees, as a guarantee of order and social justice. In this context, direct instructions have been given to these authorities to intervene in the settlement of the dispute with a view to achieving an extrajudicial conciliation between the parties.

48. Furthermore, the Government states that the supposed interference of the employer in the election of the executive board of ATFe and interference with its correspondence are "non-proven facts" contained in the report issued by the Labour Inspectorate on 26 November 1996. At all events, with a view to furthering the abovementioned search for peaceful labour relations, comprehensive and express instructions have been given to the National Directorate of Labour Inspection, in the abovementioned communication, for vigilance to be exercised at all times as regards the protection of the collective rights of workers, non-interference by employers in the election of the executive boards of trade unions and non-interference in trade union correspondence, guaranteeing in this way the exercise of the rights of the members of the executive boards of social organizations.

49. As regards the Committee's request that the Government ensure that the FERTICA SA enterprise honours the collective agreement in force, the Government points out that the Ministry of Labour has recognized at the administrative level the validity of the collective agreement and, in the same terms, the competent ministerial authorities have been applying it in accordance with the law and have received instructions to ensure that, in accordance with the law, the FERTICA SA enterprise complies with and respects the collective agreement. Furthermore, the Government states that pursuant to administrative resolution No. DRT166-99 of 18 March 1999, the Department of Labour has extended the collective agreement in question for a period ending 15 September 2000.

50. As regards the final paragraph of the Committee's recommendations, the Government notes the Committee's observations and the Ministry of Labour and Social Security accordingly undertakes to instruct all its inspectors to exert greater vigilance in the FERTICA SA enterprise with a view to ensuring that there is no obstacle to the constitutional right of assembly of workers and trade union officials and the right to hold peaceful meetings and assemblies with the workers. In this respect it should be noted that in accordance with the national law in force, the mere fact of participating in a strike picket or the open and peaceful incitement to other workers not to take up their workplaces is not considered an illegitimate act and therefore this right is guaranteed in the legal system applicable to workers.

51. Furthermore, as regards the allegation of the promotion of the constitution of the SITRAFER trade union organization by the employer, the Minister of Labour and Social Security has given instructions to the National Directorate of Labour Inspection to undertake the respective inquiry with a view to ascertaining the truthfulness of the allegations. As a result of the above, SITRAFER is an organization which is now properly constituted, as can be seen from the file, and for this reason enjoys all the rights guaranteed by the law in force, without prejudice to the rights of other organizations in similar conditions. The Government undertakes to keep the Committee informed in this respect.

52. As regards the alleged disappearance of the pension fund which is the property of the workers in the FERTICA SA enterprise, the Minister of Labour has instructed the Labour Affairs department and the National Directorate of Labour Inspection to undertake conciliation measures on a coordinated basis or, failing that, the necessary administrative inquiry with a view to establishing the truth of the matter. The Government undertakes to keep the Committee informed in this respect. Finally, the Government reiterates its readiness to comply with all the recommendations made by the Committee on Freedom of Association.

53. The Committee notes the measures taken by the Government to conciliate and mediate between the FERTICA SA enterprise and the ATFe organization and to try to secure the reinstatement of the workers dismissed from their workplaces and compliance with the collective agreement and notes with interest that the administrative authorities have taken steps to ensure that the enterprise complies with and respects the collective agreement and that pursuant to an administrative decision, this collective agreement has been extended up to 15 September 2000. On the other hand, it regrets that the enterprise, in disregard of the Committee's recommendations, refuses to reinstate the trade union officials and members dismissed. The Committee requests the Government to keep it informed of the outcome of the instructions given to the administrative authorities with a view to finding a solution and achieving the reinstatement of the dismissed persons and expresses the hope that these reinstatements will be made in the very near future.

54. The Committee notes with interest that the Constitutional Court, in decision No. 4298-97 of 23 July 1997, fixed a time limit of two months for the holding of administrative inquiries into acts of anti-union persecution and unfair practices. The Committee requests the Government to study the possibility of amending legislation so that once an inquiry concludes that acts of anti-union discrimination have occurred, the effects of such acts shall be declared null and void at least until the judicial authorities have ruled on the matter.

55. The Committee notes that the Minister of Labour has given instructions to the administrative authorities to try to resolve the dispute in the FERTICA SA enterprise through extrajudicial conciliation on the matter, including as regards the payment of trade union dues to AFTe (an organization which moreover the Government recognizes, as it does SITRAFER). It also notes that instructions have also been given to ensure non-interference by employers in the executive boards of trade unions and trade union correspondence and that the Government has instructed the labour inspectors to step up their monitoring of the FERTICA SA enterprise to ensure that there is no impediment to the constitutional right of assembly of workers and trade union officials and that they are permitted to hold peaceful assemblies. The Committee also notes the Government's remarks concerning conciliation measures or, failing that, an administrative inquiry into the alleged disappearance of the pension fund which is the property of the workers of the enterprise, set up under the collective agreement. The Committee requests the Government to keep it informed of the outcome of the various aspects of this case, including the new dismissals which occurred as a result of a socio-economic dispute. The Committee also requests the Government to carry out an inquiry into the alleged promotion by the enterprise of an executive board parallel to that of the Association of Workers of FERTICA SA (AFTe) and to keep it informed of the inquiry into the promotion by the enterprise of a new trade union (SITRAFER). The Committee hopes that its recommendations on this case will be applied in the near future.

Case No. 1824 (El Salvador)

56. When it examined this case at its November 1998 session [see 311th Report, paras. 41-44], the Committee noted that the Government had not provided the information requested concerning the following recommendations:

The Committee requested the Government to take the necessary steps to carry out an independent inquiry to look into the allegations concerning the death of the trade unionist, Ms. Julia Esperanza Quintanilla (according to the complainant, the management of the enterprise refused the trade unionist the possibility of seeking medical assistance), and in the event that these facts are confirmed, to bring appropriate action before the courts in order to determine responsibilities and punish the guilty. The Committee requested the Government to keep it informed in this respect.
With respect to the alleged arrests (by the security staff in the enterprise) of a member of the trade union executive, of two workers of the Sanobang Wool Apparel El Salvador S.A. enterprise and of Mr. Elisio Castro Pérez, secretary-general of the trade union of the textile factory, Mandarín International, as well as the physical attacks on the trade union official of the same trade union, Ms. Marta Rivas, both events allegedly occurred on 15 May 1995, the Committee requested the Government to take steps to carry out an inquiry into the allegations and, if it is ascertained that the trade unionists in question were unlawfully deprived of their freedom -- even for a short period of time -- and that Ms. Rivas was physically attacked by the security guards of Mandarín International, to bring appropriate action before the courts so that the guilty should be duly punished. The Committee requested the Government to keep it informed in this respect.
The Committee requested the Government to carry out as a matter of priority an inquiry concerning the threats made against trade unionists in two enterprises noted in the allegations in the free trade zones and to ensure that effective protection is provided for the workers in theses enterprises. The Committee requested the Government to keep it informed in this respect.

57. Furthermore, the Committee requested the Government to keep it informed of the outcome of the judicial proceedings against Mr. Huezo concerning false testimony, sequestration, extortion, death threats, illegal detention, defamation and damages and interest.

58. In communications of 11 December 1998 and 14 April 1999, the Government states as follows: (1) Ms. Julia Esperanza Quintanilla died at 14.00 on 2 March 1995 in the "El Carmen" quarter of the city following a serious attack of gastroenteritis, despite having received medical aid, as confirmed by the death certificate. At the time of her death, this worker was covered by the Salvadorian Institute of Social Security, and the enterprise gave to the mother of the deceased an amount equivalent to 60 days of base salary for the funeral, pursuant to article 313 of the Labour Code; (2) concerning the judicial proceedings instituted against Mr. Huezo, on 20 March 1998 the Second Criminal Judge of San Salvador la Nouvelle accepted a motion of dismissal in favour of Juan José Huezo for the offences of false testimony, sequestration, extortion, threats, illegal detention, defamation and action in damages against Mr. Roberto Orellana Molina, and for defamation and action in damages against José Héctor Bonilla and Romeo Alfonso Calderón Rodríguez respectively, and ordered that Mr. Huezo could remain at liberty. As a result, there are no outstanding charges against Mr. Huezo; (3) according to the representative of the Sanobang Wool Apparel El Salvador S.A. of CV, with respect to the events of 15 May 1995 against the trade unionists, which are attributed to the security personnel of the enterprise, the executive and administrative personnel of the enterprise did not enter until after the events; therefore, no one is in a position to adduce evidence of what actually happened before then. Similarly, the business records contain no details of the relevant facts. The security staff had been provided to the enterprise by the Sontay S.A. of CV company, which since October 1997 has ceased to provide such services; (4) with respect to the threats made against trade unionists in two enterprises in the free trade zones, the Government refers to the case of Mr. Huezo (examined separately) and of Ms. Vilma Sarahí Molina, first secretary of disputes of the Union of Workers in the Cotton Textile Industry, Synthetics, Manufactured Products and Related Branches. In relation to Ms. Sarahí Molina, the Government adds that the Jatex S.A. of CV enterprise stated that it was impossible to conduct an inquiry four or five years after the events. In addition, the Government annexes to its response a communication of the National Federation of Unions of Salvadorian Workers (FENASTRAS), stating as follows: "Concerning threats with firearms against Ms. Sarahí Molina by members of the Salvadorian national civil police, we have learned from non-official sources that the Deputy Commissioner, Darwin Ernesto Arevalo Magaña, and the Deputy Inspector, Jorge González, have been dismissed from their functions on the ground of abuse of authority in this matter."

59. The Committee notes the observations forwarded by the Government on all the allegations. It requests the Government to confirm the information provided by FENASTRAS in relation to the threats against trade unionist Ms. Sarahí Molina, in particular concerning the measures taken against the members of the national civil police responsible for the threats.

Case No. 1908 (Ethiopia)

60. At its June 1998 meeting [see 310th Report, paras. 18-22], the Committee, deeply regretting that having already requested the Government on two previous occasions to carry out an independent investigation into the attack and occupation of the FCTP enterprises and the physical assault of the FCTP treasurer, Mr. Gurmu the Government had decided not to undertake such an investigation, urged the Government immediately to undertake an independent investigation into these matters. The Committee also urged the Government, in the interest of all parties concerned, to institute an independent judicial inquiry into the allegation of the existence of irregular procedures for the nomination of new leaders of the FCTP and to keep it informed in this regard. Furthermore, the Committee requested the Government to amend the legislation conferring broad power on the Minister to dissolve a confederation, to undertake an independent investigation to verify the allegations made against the former CETU and to determine whether the administrative decision to cancel the organization constituted unjustifiable interference in trade union affairs; if so, to take the necessary measures to ensure the reinstatement of the former CETU executive, and to keep the Committee informed in this regard.

61. In a communication of 5 March 1999, the Government states that it has repeatedly informed the Committee that the problems and crisis created within the executive of CETU was overcome after the General Assembly of CETU in 1997 decided to reinstate the confederation. It states further that workers are now more than ever before fully exercising their rights and benefiting from the democratic process under way in the country.

62. The Committee deeply regrets that the Government in its most recent reply merely repeats views it has expressed previously concerning only one of the issues raised by the Committee, and gives no indication that it intends to make any effort to implement the Committee's recommendations. The Committee must deplore this attitude of the Government in the face of serious allegations of violations of freedom of association. The Committee expresses the firm hope that the Government will reconsider its attitude towards the implementation of the recommendations and asks to be kept informed in this regard.

Case No. 1854 (India)

63. During its last examination of this case in November 1998 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 had been implicated in the murder [see 311th Report, paras. 52-53].

64. In a communication dated 22 February 1999 the Government states that the provincial Government of Bihar, being the appropriate government in this case, has informed it that charge sheets have been submitted against the accused: (i) Shravan Giri and Tapan Kumar Manjhi on 8.1.96; (ii) Dinesh Mandal on 8.4.96; (iii) Munna Punjabi on 25.8.96; (iv) Bhrigunath Gupta and Ratan Ghosh on 14.2.97; (v) Narsing Singh: Supplementary charge sheet on 17.4.98; and cognizance taken on 8.8.98. The Government contends that it is thus clear that the law is taking its course in this criminal case. The Government of Bihar is being requested to make available the latest developments in the case for its onward transmission to the ILO.

65. The Committee recalls that this case concerns the murder of Mrs. Ahilya Devi, a trade unionist who was allegedly organizing rural workers in the State of Bihar on 23 August 1995, and that the Government had indicated that on the basis of the investigation Ms. Devi was murdered on account of her activities related to smuggling which had led to antagonism with other persons also involved in smuggling. The Committee once again asks the Government to supply copies in an ILO working language of the judgement to be handed down in relation to this murder that occurred in 1995 at an early date.

Case No. 1890 (India)

66. During its last examination of the case in November 1998 the Committee asked the Government 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 urged the Government to take the necessary steps to have him reinstated in his post if he so desired. The Committee also requested the Government to take the appropriate steps to ensure that the management inquiries on alleged acts of misconduct of several FABREU members were dropped and to obtain the employers' recognition of FABREU for collective bargaining purposes.

67. In a communication dated 22 February 1999 the Government states that the provincial Government of Goa, which is the appropriate government in this case, was informed that the adjudication proceedings in respect of Charter of Demands are still in progress. As regards the adjudication proceedings in respect of six workmen, the Industrial Tribunal had fixed the date for framing the issues on 1 December 1998. As regards the dispute on termination of services of Shri Laxman Malwankar, it was fixed by the Industrial Tribunal for evidence on preliminary issues on 14 December 1998. The matters are now adjourned to 13 January 1999 and 3 February 1999 respectively. As regards the pendency of the proceedings against other workers, inquiries are still in progress. The Government reiterates that the two basic laws governing industrial relations in India, i.e. the Industrial Dispute Act, 1947, and Trade Unions Act, 1928, are enforceable throughout the territory of India including the Province of Goa but these two laws do not invest the Government with any powers to compel any employer to give recognition to any trade union. However, the Code of Discipline, which is voluntary and not mandatory in nature, governs the recognition of unions. In this context, the Government supplies extracts from "Recognition of Unions Under the Code of Discipline". The Government adds that further progress will be communicated to the Committee in due course.

68. The Committee takes note of this information. It recalls however that this case related to various acts of harassment and anti-union discrimination carried out against the President of FABREU, Mr. Malwankar, from 1992 to 1994 which culminated in the dismissal of this trade union leader in January 1995 and the suspension or transferral of FABREU members in April 1995 following a strike action in the hotel industry which was declared a public utility service and thus referred to the Industrial Tribunal contrary to the principles of freedom of association since the hotel industry is in no way an essential service in which strikes can be prohibited. The Committee also recalls that an agreement was signed in October 1995 with a newly formed organization called Fort Aguada Beach Resort Workers' Association thus de-recognizing FABREU, the management recognizing the association as the sole bargaining agent in the company. The Committee had concluded from the evidence at its disposal that no doubts existed that FABREU was the most representative at the Fort Aguada Beach Resort and had urged the Government to take appropriate conciliatory measures to obtain the employers' recognition of FABREU for collective bargaining purposes [see 307th Report, paras. 366-375]. The Committee cannot but insist on the need to take urgent measures to restore harmonious industrial relations in the Fort Aguada Beach Resort and to keep it informed of any positive developments in this regard.

Case No. 1698 (New Zealand)

69. At its meeting in November 1998 [see 311th Report, paras. 66-68], the Committee recalled that the right to strike was one of the essential means through which workers and their organizations may promote and defend their economic and social interests and therefore once again urged the Government to amend section 63(e) of the Employment Contracts Act (ECA) so as to ensure protection of this right. Furthermore, the Committee noted the Government's indication that it was considering the issues relating to bargaining, particularly as concerns the recognition of the employees' representative and that it would announce its conclusions on these issues shortly. It requested the Government to keep it informed of developments in this regard.

70. In a communication dated 15 February 1999, the Government indicated that its consideration of issues relating to bargaining, particularly recognition of the employees' representative, has led it to the conclusion that the existing requirements under the ECA, as clarified by the case law, are sufficient to support fairness in bargaining and therefore it would not seem necessary to amend the current legislation. As concerns section 63(e), the Government reiterated its position that this section provides a balance between the employees' right to strike and employers' rights not to have to face strike action and incur losses due to the actions of other employers over which they have no control or to be bound into arrangements with competing business. Finally, the Government provided information on recent cases concerning the application of the ECA.

71. The Committee takes note of this information. As concerns section 63(e) of the ECA [see Digest of principles and decisions of the Freedom of Association Committee, 1994, para. 844], the Committee can only strongly reiterate its previous conclusion in this case that provisions which prohibit strikes, if they are concerned with the issue of 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 [see 292nd Report, para. 737]. It requests the Government to amend section 63(e) in this respect, and to keep it informed of any measures taken.

Case No. 1826 (Philippines)

72. When it last examined this case in November 1997 [see 308th Report, paras. 65-67], the Committee urged the Government to ensure that the elections demanded by the members of the Cebu Mitsumi Employees' Union (CMEU), a local union of the Associated Labor Unions (ALU), itself an affiliate of the Trade Union Congress of the Philippines (TUCP), are held immediately at the Cebu Mitsumi enterprise, especially in view of the fact that the newly established CMEU filed a petition for a certification election in February 1994, which had been signed by almost all the workers at the enterprise [see 302nd Report, paras. 405-408].

73. In a communication dated 25 January 1999, the Government states that on 8 June 1998 the Department of Labor and Employment (DOLE) denied the employer's motion. It adds that on 17 November 1998 a pre-election conference was conducted with the presence of representatives of both parties, which decided that an updated list of qualified voters should be submitted by 20 January 1999 and that another conference was to be held on 28 January to fix the inclusion-exclusion proceedings and the conduct of the certification election.

74. The Committee notes this information. It recalls that it is not necessarily incompatible with Convention No. 87 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided. The Committee has pointed out that in several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organization other than the certificated organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 834].

75. The Committee deeply regrets that the question of which workers have the right to vote has not yet been resolved after over four years have elapsed since the petition to hold certification elections signed by nearly all the workers at the Cebu Mitsumi enterprise was filed. The Committee accordingly once again urges the Government to ensure that elections are held immediately in the Cebu Mitsumi enterprise and to keep it informed as a matter of urgency of the outcome of the elections.

Case No. 1914 (Philippines)

76. During its last examination of the case in June 1998 [see 310th Report, paras. 557-575) the Committee urged the Government to ensure that the 1,500 or so leaders and members of the Telefunken Semiconductors Employees' Union (TSEU) who were dismissed further to their participation in strike action from 14 to 16 September 1995 were reinstated immediately in their jobs under the same terms and conditions prevailing prior to the strike with compensation for lost wages and benefits, in conformity with the Orders for Reinstatement issued by the Government's Department of Labor and Employment (DOLE). The Committee requested the Government to keep it informed of any developments in this regard. The Committee also requested the Government to institute without delay an independent judicial inquiry into the acts of violence carried out against TSEU members who were picketing on 20 and 21 October 1995 so as to identify and punish the guilty parties; it requested the Government to keep it informed of the outcome thereof.

77. In a communication dated 25 January 1999 the Government states that on 20 August 1998, the Department received a copy of the Entry of Judgement certifying that the Court's decision on 12 December 1997 had become final and executory on 6 April 1998. In the light of this development, the Secretary issued a Writ of Execution on 26 August 1998 directing the immediate reinstatement of the workers in the company's payroll in the event that actual or physical reinstatement is impossible. The company's continued refusal to reinstate said workers led to its filing of a series of motions aimed at delaying the execution of said Writ, the last of which was a twin opposition filed on 21 October and 9 November 1998. On 2 December 1998, the Secretary of Labor and Employment issued an Order directing the Bureau of Working Conditions (BWC) to compute individual wages of the striking workers reckoned from 27 June 1996 up to the actual date of their reinstatement. A writ of execution shall likewise be issued to satisfy said claims. The Government adds that it will update the Committee on any action taken by the Bureau of Working Conditions relative to the Order and the Court's decision on the company's latest motion in future.

78. As regards the question of instituting an independent judicial inquiry into the acts of violence carried out against the TSEU members who were picketing on 20 and 21 October 1995, the Government reiterated the contents of its communication of 12 March 1998 that the Philippine National Police has clarified the issue and disproved the allegation of the strikers, stressing that their presence during the strike is only consistent with their mandate to enforce the law and secure peace and order in the area. Nevertheless, the Government states that it takes note of the Committee's recommendation.

79. The Committee takes due note of this information. However, the Committee still notes with regret that four years have elapsed since the first Order for Reinstatement. It therefore asks the Government to guarantee expeditious and effective protection against any act of anti-union discrimination and once again urges the Government to make every effort to ensure that the members and leaders of the Telefunken Semiconductors Employees' Union (TSEU) are effectively reinstated in their jobs under the same terms and conditions prevailing prior to the September 1995 strike and to keep it informed of any developments therein as well as with regard to the results of an independent judicial inquiry carried out into the events of October 1995.

Case No. 1852 (United Kingdom)

80. At its meeting in November 1998, the Committee requested the Government to keep it informed of the outcome of the consultation process and the status of the proposals made in the White Paper on Fairness at Work in so far as they touched upon the matters dealt with in this case. It also requested the Government to provide information on the specific facts of the case, particularly in respect of the measures taken to ensure that the Iron and Steel Trades Confederation (ISTC) is afforded reasonable access to Co-Steel both for contact with its members and with potential members [see 311th Report, paras. 76-77].

81. In a communication dated 30 October 1998, the Trades Union Congress (TUC) transmitted information relating to recent developments at the Co-Steel plant at Sheerness. The TUC alleges that Co-Steel had just announced 18 redundancies and a few days later indicated that it was selling part of the enterprise. The TUC points out that the number of terminations is just less than the number for which notice must be given to the authorities and for which consultation with employee representatives is required. According to the TUC, 14 of the people affected were active trade union members, 12 of whom were members of the ISTC organizing team in Co-Steel. Immediately after these terminations were announced new contracts of employment and plans to introduce a management-controlled works council were proposed to the remaining workforce. The TUC also refers to the dismissal the previous year of Joe Davey, ISTC convenor, who was found to have been unfairly dismissed and claims that the actions of the management since 1992 have been directed at destroying the ISTC presence in the plant. Furthermore, it was made clear to employees who were made supervisors that they were expected to resign their trade union membership and the company had announced that new contracts would be assistant managers in a move designed to widen the bargaining unit to include real managers and thus to frustrate future attempts to win trade union recognition. Finally, the TUC states that there still has been no inquiry into the anti-union tactics of the company, particularly as concerns its disregard of the overwhelming vote by Co-Steel employees for ISTC representation and for collective bargaining.

82. In a communication dated 3 March 1999, the Government, recalling that the focus of the question is one of trade union recognition, informs the Committee that the Employment Relations Bill currently before Parliament contains important provisions to establish a statutory procedure whereby unions can gain recognition. The Government considers that these procedures will defuse the type of dispute which has occurred at Co-Steel and ensure that unions can gain recognition where a majority of the workforce favour it. The Government further indicates that disputes concerning recognition are already being resolved voluntarily by the parties in advance of the new Bill becoming law and suggests that it is open to Allied Steel and Wire, which recently bought the Sheerness plant from Co-Steel, to pursue this kind of voluntary resolution. As concerns the allegations of inadequate protection against anti-union victimization occurring in the plant, the Government recalls that workers can appeal to the employment tribunal seeking redress on the grounds of unfair dismissal. The Government refers in this respect to the appeal made by Joe Davey and the close and detailed consideration by the tribunal which, while finding that he was unfairly dismissed, did not consider the dismissal to be based on grounds of trade union membership. In this case, the company was ordered to pay compensation. The Government enclosed a copy of the tribunal's judgement with its communication. Finally, the Government states that it does not intend to carry out an inquiry into the events at Co-Steel as it does not operate a labour inspectorate system common to most countries, but rather provides employment tribunals to hear cases of alleged infringements of employment rights.

83. The Committee takes note of this information. As concerns the matter of union recognition generally, the Committee requests the Government to keep it informed of developments in respect of the Employment Relations Bill and to transmit a copy of this Bill as soon as it has been adopted. As concerns the allegations of further anti-union victimization at Co-Steel, the Committee recalls the importance it attaches to the principle that such allegations should be inquired into immediately by the competent authority with a view to taking suitable measures to remedy the effects of any anti-union discrimination and regrets the Government's refusal to carry out any such investigation. In particular, the Committee regrets that the Government has not provided any information on the measures taken in respect of its previous recommendation that the Government ensure that the ISTC is afforded reasonable access to Co-Steel both for contact with its members and potential members. Given the apparent lack of progress in resolving the serious difficulties in labour-management relations at this plant, the Committee once again requests the Government to give consideration to establishing an independent investigation into the allegations of anti-union tactics and to indicate the measures taken to ensure that reasonable access to the plant has been afforded to the ISTC. It requests the Government to keep it informed of the measures taken in this regard.

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

84. The Committee last examined this case at its November 1998 meeting [see 311th Report, paras. 78-80]. It had requested the Government, inter alia, 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.

85. In a communication dated 3 March 1999, the Government indicates that it intends to complete a review of industrial relations legislation by the end of 1999. In this regard, the Government states that it has already sought the views of the Isle of Man Trades Council and will be contacting employers' organizations in the near future.

86. The Committee takes note of this information and requests the Government to provide it with further details of this review when it will be available.

* * *

87. Finally, as regards Cases Nos. 1509 (Brazil), 1512/1539 (Guatemala), 1581 (Thailand), 1618 (United Kingdom), 1785 (Poland), 1793 (Nigeria), 1796 (Peru), 1812 (Venezuela), 1813 (Peru), 1834 (Kazakhstan), 1837 (Argentina), 1843 (Sudan), 1849 (Belarus), 1850 (Congo), 1869 (Latvia), 1875 (Costa Rica), 1877 (Morocco), 1883 (Kenya), 1884 (Swaziland), 1886 (Uruguay), 1891 (Romania), 1895 (Venezuela), 1926 (Peru), 1935 (Nigeria), 1937 (Zimbabwe), 1952 (Venezuela), 1956 (Guinea-Bissau), 1967 (Panama), 1969 (Cameroon), 1977 (Togo) and 1981 (Turkey), the Committee requests the governments concerned to keep it informed as soon as possible of any developments relating to these cases. Moreover, the Committee has just received information concerning Cases Nos. 1942 (China/Hong Kong) and 1954 (Côte d'Ivoire) which it will examine at its next meeting.

Case No. 1939

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

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

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

88. The Committee examined this case at its June 1998 meeting and presented an interim report to the Governing Body [see 310th Report, paras. 107-122, approved by the Governing Body at its 272nd Session (June 1998)].

89. The Government sent its observations in communications dated 22 October 1998, 29 April and 6 May 1999.

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

A. Previous examination of the case

91. When previously examining the case, which dealt with allegations of killing, detention, physical assaults and death threats against trade unionists and trade union leaders, as well as break-ins in trade union premises and trade unionists' homes and request to withdraw legal recognition, the Committee made the following recommendations [see 310th Report, para. 122(a) and (b)]:

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

B. The Government's reply

92. In its communications of 22 October 1998, 29 April and 6 May 1999, the Government provided the following information in connection with the events which occurred under the jurisdiction of Neuquén Province:

concerning the complaint that an incendiary bomb was set off in the premises of the Association of State Workers of Cutral-Co, the Government encloses Memorandum No. 2876 (CCO) stating that the police station of the 14th district of Cutral-Co registered the relevant complaint lodged by Miguel Dante Alvarez and acting upon a telephone call, went on the spot to ascertain that there had been a fire in the ATE premises and, having observed the damage (in this case only "damage to glass in the entrance door and damage caused by smoke to the premises"), took all the necessary measures to try and clarify the events, such as carrying out an expert's appraisal of the premises by competent staff. Any information in this respect will be communicated to the Committee as soon as possible;
concerning the complaint that "a group of unidentified persons fired shots at the front of the premises" of the ATE Cutral-Co headquarters, the Government encloses Memorandum No. 3177 (CCO) stating that Celso Fabían Quesada lodged the relevant complaint with the 14th police station of Cutral-Co specifically pointing out that "nobody was suspected". The police took the appropriate measures and initiated preliminary investigations. Any further information on this matter will be communicated to the Committee in the near future;
the Government points out that, concerning both occurrences, the corresponding judicial proceedings were carried out by the Court of Criminal Investigation and that it was clear that the police authorities had acted promptly and taken the necessary procedures. Similarly, the Government states that the relevant authorities are not sparing any effort to try and cast light immediately on such regrettable occurrences. Any progress made and further information acquired with respect to the events mentioned above will be communicated immediately to the Committee;
concerning the allegation that on the night of 23 June 1997 a group of about 40 police officers had broken into the homes of members of the Central Association of Argentine Workers (CTA) of Cutral-Co, and other allegations (arrest of persons without informing them of where they were being taken, break-ins during the night rather than the day, break-ins by persons wearing hoods, violence used during the break-ins against members of the detainees' families, lack of jurisdiction of the police to break into the premises, arrest without any legitimate charge being made by the competent legal authority), the Government encloses a copy of Official Note No. 1222 (DSICCO) giving an account of the events and instances which occurred on 13 June 1997 as a result of the visit of a government group headed by the Vice-Governor of Neuquén Province; copy of Judicial Proceedings No. 3519 (CCO-J); copy of Memorandum No. 3783 (CCO); note drawn up by the head office of the security services of Cutral-Co and officials of the Security Superintendent's Office of Neuquén registering the documentation received. According to the abovementioned documentation and in the light of the well known events which occurred in June 1997 in Cutral-Co, it may be deduced that: (1) as a result of a serious dispute between the government authorities and workers in the Cutral-Co District in Neuquén Province, a group made up of officials from the highest ranks of government was dispatched to try and find a swift solution to the workers' claims. On the day in question, it proved impossible, after tough negotiations, to reach a satisfactory solution for the parties, at which point the group decided to leave the building in which the meetings were being held when the building was virtually taken over by demonstrators. As may be ascertained from the documentation submitted "shots were fired from small calibre firearms wielded by the demonstrators" who were gathered outside the building and there was "a massive assault on the municipal building which was practically destroyed", resulting in injuries to Police Superintendent Oscar Pincheira, Sergeant Miguel Acosta and Officer Patricio Mamani. In view of such regrettable incidents, corresponding legal proceedings were initiated with a view to establishing that offences might have been committed, determining the responsibility and identifying those presumed guilty. In view of the above circumstances, a magistrate was instructed to carry out investigations; in doing so he took measures authorized under law to try and establish the objective truth, which include the break-in and arrest of anyone suspected of having committed an offence; (2) it is clear from the documentation submitted that the break-in of the home and arrest of Sandro Botron during the day was in full compliance with the orders issued by the competent authority and that the police carrying out these actions were fully competent to carry out these tasks and fulfilled all the necessary legal requirements. Furthermore, attempts were made to avoid calling in the police and they were only called in as a last resort and, to a minimum extent, to ensure compliance with the procedures ordered. In fact, the person injured during the proceedings was Police Superintendent Carlos Salazar and, as the police had taken the precaution of filming the events, a family member of Sandro Botron destroyed the camera. In short, the Government dismisses as totally unfounded the allegations made to the Committee that there were "flaws in the proceedings" liable, in any way, to undermine rights granted to citizens which the Argentine Government guarantees and protects. As regards the allegations concerning break-ins at the homes and arrest of Sandro Botron, Juan Bastías, Cristían Rodríguez, Oscar Chávez, Beatriz Parra, Christían Valle and Angel Lucero, members of the CTA of Cutral-Co, as well as the allegations concerning the legal proceedings initiated against three of them, the judge responsible for the cases submitted a report to which reference is made above: (1) as regards the events that occurred on 12 and 13 June 1997 he decided to proceed to an inquiry led by a competent judge because of the considerable damage, looting and fire suffered by the municipal building, the destruction of the car of a senior municipal executive officer and gun shots, etc.; (2) these were proceedings engaged in accordance with the Constitution and the law and done pursuant to a written order issued by the competent judge. As regards Ms. Teresa Rodríguez's death which occurred during the events of 12 April 1997 in the Neuquén Province, the judge is still investigating in order to collect the evidence which would allow shedding light on these regrettable events. Also, the police officer Hugo Alberto Rudof will continue to be associated with this case.

93. Lastly, the Government stated that, as regards the events that occurred in Buenos Aires Province and concerning the alleged threat and physical assault against trade unionists of ATE-Lanús and alleged threat against trade unionists of ATE-San Martín, Quilmes, the Buenos Aires Province State Secretary responsible for labour affairs indicated that no administration measure was brought against the perpetrators of these alleged violations of freedom of association principles but that however complaints brought before the inquiring judge and the police are actually being investigated even if they are not supported with sufficient evidence; they are still at the instruction stage, i.e. the collection of evidence.

C. The Committee's conclusions

94. The Committee notes that the allegations that had remained pending when it examined this case at its June 1998 meeting concerned attacks and break-ins of trade union headquarters, the break-in of trade union members' homes and the subsequent arrest of these members, assaults and death threats against trade unionists, and the request to withdraw legal recognition of two trade unions. Similarly, the Committee notes that during its last examination of the case, it had requested the Government to keep it informed of the outcome of judicial proceedings concerning the killing of Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén Province.

95. With respect to the allegation concerning the attack on the premises of the ATE trade union in Neuquén Province on 15 and 24 May 1997, the Committee notes the Government's statements to the effect that: (1) concerning the complaint that an incendiary bomb was set off in the premises of the Association of State Workers of Cutral-Co, the police station of the 14th district of Cutral-Co registered the relevant complaint from Miguel Dante Alvarez and, acting upon a telephone call, went on the spot to ascertain that there had been a fire in the ATE headquarters and, having observed the damage, took all the necessary measures to try and clarify the events, such as carrying out an expert's appraisal of the premises by competent staff; and (2) concerning the complaint that "a group of unidentified persons fired shots at the front of the premises" of the ATE headquarters in Cutral-Co, Celso Fabián Quesada lodged the relevant complaint with the police station of the 14th district of Cutral-Co, specifically pointing out that "nobody was suspected", and that the police took the appropriate measures and initiated preliminary investigations. The Committee also notes that the Government maintains that in both cases it carried out the necessary judicial proceedings and that the relevant authorities are sparing no effort to try and cast light immediately on such regrettable events. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way.

96. With respect to the allegation concerning the break-ins into unionists' homes and subsequent detention on 23 June 1997 of members of the Cutral-Co branch of the CTA (Sandro Botron, Juan Bastías, Cristián Rodríguez, Oscar Chávez, Beatriz Parra, Cristián Valle and Angel Lucero) and the legal proceedings initiated against three of them (Rodríguez, Botron and Parra), the Committee notes the Government's statements to the effect that: (1) as a result of a serious dispute between the government authorities and the workers in the district of Cutral-Co, Neuquén Province, a group made up of officials from the highest ranks of government was dispatched with a view to finding a swift solution to the workers' claims and that after serious negotiations it had been impossible to reach a satisfactory solution for the parties, at which point the group decided to leave the building in which the meetings were being held when the building was virtually taken over by demonstrators; according to the Government, shots were fired from small calibre firearms by the demonstrators who were gathered outside the building and that a massive assault on the municipal building almost destroyed it, resulting in injuries to three police officers; as a result of such regrettable instances, legal proceedings had been initiated with a view to establishing that offences might have been committed, determining responsibility and identifying those presumed guilty. A judicial inquiry had been set in motion in accordance with measures authorized by the law in order to try and establish the objective truth, which include the break-in and arrest of anyone who might be suspected of having committed a crime; and (2) the break-in at the homes of trade unionists Sandro Botron, Juan Bastías, Cristían Rodríguez, Oscar Chávez, Beatriz Parra, Cristían Valle and Angel Lucero, members of the CTA, and their subsequent arrest were carried out in compliance with orders issued by the competent authority, during the day, by police officers fully competent to carry out this task and in accordance with all the requirements provided for under the legislation to guarantee rights extended to all citizens. It points out that the procedure was engaged in accordance with the Constitution and the law and done pursuant to a written order issued by the competent judge and attempts were made to avoid calling in the police and that they were only called in as a last resort and, to a minimum extent, to ensure compliance with the procedures ordered. It is stressed that a police officer sustained injuries as a result of this action.

97. In this respect, whilst noting that the Government points out that the break-in to the homes of trade unionists Sandro Botron, Juan Bastías, Cristían Rodríguez, Oscar Chávez, Beatriz Parra, Cristían Valle and Angel Lucero and their subsequent arrest was carried out with a warrant, the Committee requests the Government to keep it informed on the situation of the four trade unionists, in particular with respect to the charges brought against them and the length of their detention.

98. As regards the killing of Ms. Teresa Rodríguez by police officers during a demonstration held on 12 April 1997 in the Neuquén Province, the Committee notes that according to the Government the judicial authorities are still investigating. The Committee requests the Government to keep it informed of the outcome of these proceedings.

99. However, the Committee notes that the Government has not provided information on the investigation concerning allegations which remained pending following its last examination of the case: assault on ATE delegate, Jorge Villalba, on 13 June 1997 in Lanús; the death threat against Ms. Nélida Curto, a member of the administrative committee of ATE-Lanús, on 23 June 1997; the threat made on 26 June 1997 against Ms. Ana María Luguercho, ATE delegate at the Arturo Melo Hospital; the death threat against the ATE-Lanús delegate, Daniel Saavedra; the death threat against Víctor Bordiera, general secretary of ATE-San Martín; the threat against Mr. Ricardo Caffieri, deputy general delegate of ATE-General Rodríguez District, on 10 July 1997. The Committee requests the Government to keep it informed of the outcome of these proceedings.

100. As regards the allegations which remain pending and which concern the attack on the home of the deputy secretary of ATE (National Branch), Mr. Juan González, the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya and the request by the Governor of Neuquén Province for the withdrawal of legal recognition from the state employees and teaching unions (ATE and ATEN), which are affiliated to the CTA, the Committee regrets that the Government has not sent its observations on these matters. In this respect, recalling the importance it attaches to an independent inquiry, the Committee requests the Government to take steps to ensure that investigations are carried out on all these allegations and to keep it informed on the outcome of these investigations.

The Committee's recommendations

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

(a) The Committee requests the Government to keep it informed of the charges brought against the members of the CTA of Cutral-Co, Sandro Botron, Juan Bastías, Cristían Rodríguez, Oscar Chávez, Beatriz Parra, Cristían Valle and Angel Lucero and of the length of their detention.

(b) The Committee requests the Government to keep it informed of the outcome of the judicial investigations as regards the allegations on: (1) the assault on ATE delegate Mr. Jorge Villalba, on 13 June 1997 at Lanús; (2) the death threat made against Ms. Nélida Curto, a member of the administrative committee of ATE-Lanús; (3) the threat against the ATE delegate at the Arturo Melo Hospital, Ms. Ana María Luguercho on 26 June 1997; (4) the death threat against the ATE-Lanús delegate, Mr. Daniel Saavedra; (5) the death threat against the general secretary of ATE-San Martín, Mr. Víctor Bordiera; and (6) the threat against the deputy general delegate of ATE-General Rodríguez district, Mr Ricardo Caffieri.

(c) As regards the allegations still pending after the last examination of the case and concerning the attack on the home of the deputy secretary of ATE, National Branch, Mr. Juan Gonzáles, the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya, and the request by the Governor of Neuquén Province to withdraw legal recognition from the state employees and teaching unions (ATE and ATEN which are affiliated with the CTA), the Committee requests the Government to take the necessary measures to investigate these allegations and to keep it informed of their outcome.

(d) The Committee requests the Government to keep it informed of the outcome of the judicial inquiry into the killing of the worker Teresa Rodríguez by police offices during a demonstration organized on 12 April 1997 in Neuquén Province in protest against unemployment.

Case No. 1949

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

Complaint against the Government of Bahrain
presented by
-- the Bahrain Workers' Union and
-- the World Federation of Trade Unions

Allegations: Violation of the right to form trade unions;
acts of anti-union discrimination

102. The World Federation of Trade Unions (WFTU) and the Bahrain Workers' Union submitted a complaint against the Government of Bahrain in communications dated 7 September and 6 October 1997, and 10 February, 16 March, 27 August and 30 December 1998. The Government sent its observations on 1 April 1998 and 24 February 1999.

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

A. The complainants' allegations

104. Generally speaking, the complaint submitted by the complainants concerns the denial of the right to organize in Bahrain, arguing that the Government is against any form of workers' organization, denies trade union rights and prohibits any form of trade union activity.

105. Legislative aspects. The complainants allege that the Government refuses to apply articles 27 and 28 of the country's Constitution concerning trade union rights and the right to establish and join trade unions. In 1981 the Government adopted two Ministerial Orders (Nos. 9/1981 and 10/1981) which make absolutely no reference to workers' right to organize and prescribe the establishment of joint committees of workers' and employers' representatives as a basic principle. According to the complainants, these Orders confirm the Government's refusal to allow the formation of a trade union for Bahraini workers.

106. The complainants add that the Government has also violated trade union rights by repealing the Trade Union Act of 1957 and replacing it by a single provision in the 1976 Labour Code (section 142 of Law No. 23/1976) stipulating that joint committees composed of employers' and workers' representatives may be formed in any establishment for "cooperation in the settlement of disputes, securing improvements to the workers' social standards, organizing social services, fixing wages, increasing productivity and in any other matters of mutual interest to the two parties".

107. The complainants allege that the effect of this provision is to replace traditional trade unions by joint employer-worker committees.

108. The complainants consider that, by amending the labour legislation and setting up joint labour committees, the Government has established a form of workers' representation that is unacceptable and is thereby denying workers the right to establish their own organizations to represent them on such joint committees. The complainants also criticize the fact that the composition of these committees, which consist of four employers' and four workers' representatives, is subject to ministerial authorization and that the minister can reject any workers' candidate for reasons of national security.

109. The Government has also established a General Committee of Bahraini Workers which, according to the complainants, is under its strict control. In support of their allegations, the complainants submit communications showing that the Government requires that a ministerial representative attend and supervise general meetings of the General Committee of Bahraini Workers. The complainants maintain that this Committee does not in any way comply with the principles of freedom of association and has none of the trade union rights defined in international labour Conventions. They argue that, in any case, the very concept of joint representation is illogical if it is designed to take the place of genuine and effective trade union representation.

110. Furthermore, the Government allegedly adopted a provision in the 1976 Penal Code (article 132) whereby any citizen who in any capacity whatsoever contacts the representatives of trade unions, organizations, associations or federations is liable to at least three years' imprisonment or a fine of at least 100 dinars, or both. The complainants state that in August 1997 the Minister of Labour took additional measures against freedom of association by prohibiting the General Committee of Bahraini Workers itself from engaging in any international activity and requiring it to follow ministerial instructions.

111. These legislative provisions have allegedly caused grave prejudice to the Bahrain Workers' Union, which under the law cannot freely organize its activities in the country. The complainants explain that the official announcement of the establishment of the Bahrain Workers' Union was made on 15 February 1978 following an agreement among Bahrain's trade unions that was concluded under the supervision of the International Confederation of Arab Trade Unions (ICATU), the Kuwait Workers' Union and the Yemen Workers' Union. Its organizational programme was announced and registered with ICATU on 11 April 1984. A few days later the programme was submitted to the Minister of Labour and Social Affairs and published in several local Arabic newspapers. At the same time the organization initiated proceedings requesting the Ministry of Justice to order the Ministry of Labour and Social Affairs to recognize the organization and to cease taking legal action against trade unionists and arresting and deporting them for trade union activities. At the beginning of July 1989 the organization again submitted its constituent documents to the Ministry of Labour so that it could be registered and recognized as a legally constituted trade union organization. The complainants note that the Bahrain Workers' Union has been affiliated to ICATU and the WFTU since April 1989. The 6,000-member strong Bahrain Workers' Union is represented outside the country by two union leaders who are also its official delegates to ICATU, Mr. Hamid Ibrahim Awachi and Mr. Mohamed Abdul Jalil Al-Murbati. Because the Government systemically refuses to allow them or the members of their family to enter the country, they conduct their principal activities outside Bahrain. Mr. Awachi allegedly attempted to return to Bahrain in April 1993, when he was arrested and held for a week before being expelled from the country.

112. Regarding Mr. Al-Murbati's situation, the complainants allege that he is the object of anti-union discrimination by the public authorities. They recall that Mr. Al-Murbati, as the unchallenged leader of the trade union movement in Bahrain, participated actively in national trade union activities between 1969 and 1973 and was unanimously elected by the air traffic controllers of Bahrain airport where he worked as a technician. Mr. Al-Murbati is also a member of the regional councils of ICATU and the WFTU. As already noted, Mr. Al-Murbati has been in exile for many years and, contrary to the country's own Constitution which stipulates that nationality is determined by law and can only be lost in the case of high treason or dual nationality, he and the members of his family have been refused Bahraini citizenship. Yet Mr. Al-Murbati is of Bahraini nationality by birth, as his passport (No. 54739) issued in 1967 shows, and has never been convicted of high treason or held another nationality. According to the complainants, therefore, he is fully entitled to Bahraini citizenship and the authorities' refusal to renew his passport when he applied in 1977 is purely arbitrary. The complainants believe that the steps taken against Mr. Al-Murbati are part of a general policy to weaken and if possible wipe out the trade union movement in the country.

B. The Government's reply

113. The Government considers the complainants' allegations to be unfounded and motivated entirely by political considerations. According to the Government, their communications completely disregard the system of labour relations in Bahrain which fully guarantees the protection of workers' rights and permits them to settle their disputes peacefully.

114. Moreover, the allegations of the complainants ignore the real situation of this island State which, with its 600,000 inhabitants, is the fifth most densely populated country in the world. Furthermore, although oil accounts for some 60 per cent of the Government's revenue, Bahrain's policy has been actively to seek diversification in the economy, notably by investing in the financial and tourism sectors. According to the Government, there are good reasons why there are no trade unions in the country: for example, when the Labour Code was adopted, more than 90 per cent of the workers were non-nationals. That being so, it was neither appropriate nor practical to provide for the establishment of trade unions in the strict sense of the term.

115. The Government emphasizes that there are in any case bodies and machineries for representing workers. These bodies protect the rights of those they represent and facilitate an atmosphere of cooperation and consultation between workers, employers and the Government. They can in fact be regarded as trade unions in all but name. This structure has proved to be beneficial for all concerned and has helped to improve productivity and reduce the incidence of costly and disruptive industrial action.

116. According to the Government, the system of Joint Labour-Management Consultative Committee (JCCs) has evolved as the most effective method of promoting open and constructive labour relations. These committees, which currently operate in 19 companies, have eight to ten members, half of which are from management and half from the workers' side. The Government emphasizes that any employee may stand for election as a workers' representative, subject only to the proviso that candidates should demonstrate good conduct. The national trade union body is the General Committee for Bahraini Workers (GCBW), which the Government says is consulted on a range of issues and is a member of several bodies; its members are elected by secret ballot from among JCC workers' representatives. According to the Government, the GCBW is an integral part of the country's democratic process and plays a major role in defining labour relations. When labour disputes are not settled at this level, the minister conducts an inquiry and engages in mediation. If mediation fails, the parties can submit their dispute to the labour courts.

117. The Government claims that, quite apart from propagating false information about the situation of workers in Bahrain, the complainant is not a bona fide trade union organization and should therefore not be given this status by the Committee on Freedom of Association. Neither the union as such nor its sole officer, Mr. Abdul Jalil Jaffer Al-Murbati, has any legitimate or real interest in labour relations in Bahrain. The Government backs its claim by observing that the Bahrain Workers' Union has its headquarters outside the country, in Damas, Syrian Arab Republic. It has no real link with the country and has no address or premises there. It apparently has no members in Bahrain, no structure, no leadership, no by-laws, and has an altogether artificial existence.

118. The Government adds that Mr. Abdul Jalil Jaffer Al-Murbati left Bahrain voluntarily 25 years ago, when he was being investigated for possession of weapons and explosives and was suspected of belonging to an illegal organization seeking to overthrow the Government by force. It was then that he chose to emigrate to the Syrian Arab Republic where he lives with his family. He allegedly now has Yemeni nationality (passport No. 125522 issued on 21 July 1992). The Government recalls that, under Bahraini law, Mr. Al-Murbati can in any case ask for his original nationality to be restored. The Government states that it has never deprived Mr. Al-Murbati of his original nationality. Finally, it stresses that Mr. Al-Murbati was not elected by his peers and plays no part in any group or body representing Bahraini workers within the national territory.

C. The Committee's conclusions

119. This case refers, in general, to alleged discrepancies between the national legislation and the principles of freedom of association and, more specifically, to the denial of the right of Bahraini workers to establish and join the organizations of their choice.

120. The Committee observes, first of all, that it has already examined similar complaints against the Government of Bahrain in recent years [see, inter alia, Case No. 1043, 211th Report, paras. 572-589, Case No. 1211, 233rd Report, paras. 580-592, and 234th Report, paras. 39-45, and Case No. 1413, 259th Report, paras. 553-563, and 272nd Report, paras. 171-176].

121. Preliminary objection. The preliminary objection of the Government, whereby it challenges the competence of the complainant, the Bahrain Workers' Union, to submit a complaint inasmuch as its headquarters are outside the country, has already been examined and ruled on by the Committee [see Case No. 1043, para. 584]. In its previous examination, the Committee noted that, in previous cases examining receivability of complaints emanating from trade union organizations outside the country in question, it had invariably pointed out that, under the procedure governing the submission of complaints relating to violations of freedom of association, such complaints must come either from organizations of workers or employers or from governments, but that it was sometimes suggested that the persons purporting to act on behalf of such an organization were not entitled to do so because the organization has been dissolved or because the individuals lodging the complaint had ceased to be resident in the country concerned. The Committee considered at the time that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights had been established for it to admit that the dissolution of an organization by governmental action extinguished the right of the organization to invoke the procedure.

122. However, the Committee did recognize that, in such cases, there might be difficult questions concerning the exact authority and knowledge of the facts of the persons claiming to act on behalf of the organization concerned and the reliability of the testimony of persons no longer resident in the country concerned. The Committee therefore stated that it would be prepared to consider such questions on their merits, as necessary, but that it would not regard any complaint as being irreceivable simply because the government in question had, or claimed to have, dissolved the organizations on behalf of which the complaint was made, or because the person or persons making the complaint had taken refuge outside the country concerned. In taking this view it was influenced by the conclusions unanimously approved by the Governing Body in 1937 regarding the island of Mauritius, when considering a representation under article 24 of the Constitution of the Organization, according to which it would exercise its discretion in deciding whether or not a body was to be regarded as an industrial association for the purposes of the Constitution of the Organization and would not consider itself bound by any national definition of the term "industrial association". Accordingly, the Committee considered at the time that the complaint of the Bahrain Workers' Union was receivable. In the absence of any evidence justifying a modification of this view, the Committee considers that, in the case at hand, that decision must be maintained and that the complaint submitted by the Bahrain Workers' Union is receivable.

123. Legislative aspects. In previous cases concerning Bahrain the Committee has already examined in detail the provisions referred to in the present complaint, namely Chapter 17 of the Labour Law of 1976 (Law No. 23/1976) and Ministerial Orders 9 and 10 of 1981 [see Case No. 1043, 211th Report, para. 588, and Case No. 1413, 254th Report, para. 489]. In the present case, the complainants allege that, by imposing joint committees at the level of the establishment and an elected body (the General Committee for Bahraini Workers) at the national level, these provisions deny workers the right to establish or join the organizations of their choice. They further maintain that these joint committees are not fully autonomous and independent of the public authorities since they are subject to strict government control. For its part, the Government considers that both the joint committees and the GCBW take into account the system of labour relations in the country and are an excellent means of promoting healthy labour relations.

124. More specifically, Chapter 17 of the 1976 Law (Law No. 23/1976) deals with the establishment of joint committees and councils. Inter alia, the provisions of this chapter stipulate that joint committees composed of worker and employer representatives may be formed in any establishment for "cooperation in the settlement of disputes, securing improvements to the workers' social standards, organizing social services, fixing wages, increasing productivity and in any other matters of mutual interest to the two parties" (section 142). Order No. 9/1981 prescribes the terms under which the employers' and workers' representatives are elected to these joint committees. In fact, the management appoints its own representatives and organizes elections for the worker representatives (articles 2 and 3). To be elected, a worker must "not have been convicted of any crime or offence" and "not have been engaged in any activity" prejudicial to the security, unity or interest of the State (article 4). The Ministry of Labour and Social Affairs is empowered to disallow a candidature if the nominee fails to fulfil any of the requirements of the law.

125. Since these provisions do not appear to have been amended since the last examination conducted by the Committee, it has no alternative but to recall the conclusions it formulated at that time, specifically as regards the right of workers to elect their representatives freely and the genuineness of the representation of workers provided for under the legislation concerned. Regarding the representation of workers by joint committees, the Committee considers that there is a risk that in certain cases the workers' representatives on joint committees may not be freely elected, especially as it is the management itself that organizes their election. Moreover, the Minister of Labour is empowered to disallow any candidature where the worker concerned has been convicted of "any crime" or of having engaged in activities prejudicial to the security of the State. The Committee expresses its concern at the extensive discretionary power accorded to the Minister and wishes to recall that no conviction for an activity which by its nature cannot be prejudicial to the proper exercise of official trade union functions should be allowed to constitute grounds for disqualifying a worker from holding trade union office, and that any legislation prohibiting persons convicted of any crime from exercising these functions is incompatible with the principles of freedom of association.

126. The Committee further regrets that the provisions of Order No. 10 of 1981 concerning the General Committee for Bahraini Workers, on which it commented previously, have not been amended since it last examined them. The Committee must therefore recall that articles 2 and 8 of Order No. 10 requiring that the rules for the conduct of the GCBW's affairs and any amendment to them to be approved by the Ministry of Labour and Social Affairs, as well as article 10 prohibiting the GCBW from investing its funds or acquiring assets without the prior approval of the Ministry and from engaging in political activities, are incompatible with the principles of freedom of association. That being so, the Committee must once again urge the Government to re-examine Orders Nos. 9 and 10 of 1981, adopted in pursuance of Labour Law No. 23 of 1976 and to bring them into line with the principles of freedom of association. The Committee calls on the Government to keep it informed in this respect.

127. The Committee is aware that the situation in which the complainant, the Bahrain Workers' Union, and its leaders, find themselves is due in large part to Bahrain's legislative framework, which makes no reference to trade union organizations and established joint committees in their place. The Committee recalls that the principles of freedom of association require governments to guarantee workers the right to organize freely and to establish and join the organizations of their choice. The Committee observes that workers' organizations established in this way could duly represent workers on the joint committees. In these circumstances and in general terms the Committee urges the Government to take the necessary measures so that the workers' right to organize freely is effectively guaranteed and calls on the Government to bring its legislation into line with the principles of freedom of association. The Committee recalls that the Office's technical assistance is available should it so wish. The Committee calls on the Government to keep it informed in this respect.

128. As to the refusal of the Bahraini authorities to issue a passport to Mr. Al-Murbati, the Committee observes that the statements of the parties concerned on the subject are contradictory; the complainants claim that Mr. Al-Murbati only has Bahraini citizenship, whereas the Government affirms that he holds a Yemeni passport and is therefore not entitled to a passport issued by Bahrain. Although questions of citizenship do not come within its terms of reference, the Committee notes the Government's statement that it has no intention to deprive Mr. Al-Murbati of his Bahraini citizenship and is prepared to consider carefully any request for its restoration.

The Committee's recommendations

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

(a) The Committee urges the Government to re-examine Orders Nos. 9 and 10 of 1981, adopted in pursuance of Labour Law No. 23 of 1976, and to bring them into line with the principles of freedom of association. The Committee calls on the Government to keep it informed in this respect.

(b) In general terms, the Committee urges the Government to take the necessary measures so that the workers' right to organize freely is effectively guaranteed and calls on the Government to bring its legislation into line with the principles of freedom of association and recalls that the Office's technical assistance is available should it so wish. The Committee calls on the Government to keep it informed in this respect.

Case No. 1992

Interim report

Complaint against the Government of Brazil
presented by
the Single Central Organization of Workers (CUT)

Allegations: Dismissals following a strike
and other anti-union acts

130. The complaint in this case was submitted in a communication from the Single Central Organization of Workers (CUT) dated 31 August 1998. The Government sent its observations in a communication dated 23 February 1999.

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

A. The complainant's allegations

132. In its communication dated 31 August 1998, the Single Central Organization of Workers (CUT) states that the workers of the Brazilian Post and Telegraph Enterprise (ECT) -- a federal public enterprise -- are represented by more than two dozen workers' unions and one national federation. The complainant indicates that 1 August was fixed as the date for signing the annual renewal of the collective agreement in the enterprise, and that during negotiations relating to the renewal of the collective agreement for the period 1997-98, the enterprise rejected the workers' claims; as a result they decided to take strike action which lasted 21 days. According to the CUT, during the negotiations, and during and following the strike, the Government and the enterprise committed a number of acts of anti-union discrimination. More specifically, the complainant makes the following allegations:

once the strike was over, a policy of reprisals was unleashed against the workers who had taken part in it. More than 1,500 workers were dismissed, including just over 300 trade union officials and members of internal accident prevention committees;
despite the end of the work stoppage at the enterprise, the trade union leaders were refused access to the workplace;
in a number of workplaces, the regional director of the Brazilian Post and Telegraph Enterprise in the State of Rio de Janeiro screened a video containing false information about the trade union and the strike;
restrictions were placed on trade union leaders being freed from their professional obligations to exercise their trade union activities;
the enterprise published a Manual of Trade Union Relations, which incites directors to commit various anti-union practices with the aim of discrediting the trade unions and creating a tense atmosphere between the trade unions, the enterprise and the workers; the complainant attaches a copy of the manual and points out the provisions relating to the following issues: (i) contingency plan: "this is a managerial instrument (an administrative tool) which, when used correctly, will harmonize the enterprise's actions, so as to make provision for and minimize the direct and indirect effects of strike action and its repercussions in the present and the future"; (ii) threats to family members: "involve the family in the enterprise's communication process -- spoken and written, country, spouses --". According to the complainant, this aims to demonstrate to possible supporters of the strike the inadvisability of participating in it; (iii) exemplary punishment: "discipline must be maintained in the enterprise. It is recommended to act carefully when applying disciplinary measures so that excessive or liberal measures do not prejudice the hierarchy. In short, fairness and firmness in disciplinary measures, when they are necessary. Footnote: Ideally, disciplinary measures should serve as an example"; and (iv) excessive police presence: "confirm with the responsible officials already designated in the regional contingency plan in order to carry out: security measures ...". The complainant alleges that despite the fact that the enterprise has its own security team, during the September 1997 strike the Military Police's Riot Squad was present with heavy weaponry.

B. The Government's reply

133. In its communication dated 23 February 1999, the Government states that on 26 June 1997 the Brazilian Post and Telegraph Enterprise (ECT) received a long list of demands from the National Federation of Workers of Post and Telegraph and Similar Enterprises (FENTECT), which included a request for a 21.39 per cent wage rise, an increase of over 5 per cent in real terms. On 28 August 1997 the enterprise in response proposed that the previous agreement be extended and a wage increase in keeping with the country's economic policy and the labour market, without prejudice to continuing negotiations on this matter. The enterprise subsequently put a new proposal on the negotiating table which granted a 5 per cent increase for staff occupying the positions of letter carrier, sorter, driver, etc., who make up 85 per cent of the enterprise's staff, meanwhile maintaining an increase of 2 per cent for operating staff. The Government indicates that although negotiations were under way, the trade unions affiliated to FENTECT went on strike without justification and in violation of the negotiation process, a strike that as the CUT itself admitted lasted 21 days. Continuing in the spirit of conciliation, the enterprise received FENTECT on 11 September 1997 and submitted its final proposal which consisted of maintaining the increase in benefits and supplementing them with a voucher for 200 reales for each employee.

134. The Government indicates that the efforts made by the enterprise to bring the negotiations to a successful conclusion were not sufficient for an agreement to be reached. Dissatisfied with the situation and in accordance with the basic rules governing any negotiations, the enterprise had no alternative but to withdraw its proposal and make the resumption of negotiations conditional upon the end of the strike. The enterprise's position was entirely in keeping with the most basic democratic principles given that the strike, as well as not being representative of the wishes of the majority of workers, seriously inconvenienced clients and workers who wanted to work, not to mention the financial losses involved or the negative publicity that a strike entails for the postal service.

135. The actions of the trade union organizations concerned were contrary to the legislation concerning strikes, in particular as regards the authorization given by assemblies which cannot declare strike action without giving notice, a requirement which is not met by simply communicating the possibility of strike action in lieu of the requirements and procedures stipulated in Act No. 7783/94. The Strike Act provides as follows: "Article 3. If negotiations fail or if it is found to be impossible to have recourse to arbitration, a collective work stoppage is permitted. The corresponding employing body or its employees directly involved will be notified a minimum of 48 hours before the work stoppage. Article 4. The corresponding trade union organization shall convene, in the manner provided in its by-laws, a general assembly which will define the claims of the category and will discuss the collective stoppage of services. Clause 1. The by-laws of the trade union organization should make provision for the formalities relating to calling the assembly and the quorum for deliberating, and concerning commencing and ending the strike."

136. Given that this was a strike disapproved of by the enormous majority of workers in the enterprise, the leaders of the trade unions affiliated to the workers' federation, anticipating the fragility of the movement, threatened violent pickets and forced entry into work premises, threats that were confirmed with acts of violence and vandalism in a number of units in the enterprise. In response to this situation the enterprise lodged an application for an injunction. The judicial authorities ordered that the Trade Union of Workers of the Brazilian Post and Telegraph Enterprise and Other Similar Enterprises of Ribeirão Preto and Região should refrain from any and all activities aimed at restricting or preventing the entry or exit of the public and/or officials to and from the premises of the ECT enterprise, in administrative, operational or service roles, ensuring the right of the workers who want to exercise their activities as usual, and also the general public, the freedom to come and go necessary for the movement of postal traffic. The Government states that entirely ignoring the Strike Act and the injunction, the strikers committed acts of violence and vandalism including damage to public property, offences against employees, enterprise management and users, physical assault against employees and violation of public premises.

137. In view of the serious misdemeanours committed, the enterprise, basing itself on the applicable legislation, particularly the Strike Act, dismissed 157 striking workers with just cause. In view of its clearly illegal acts, on 23 September 1997 FENTECT found itself obliged to declare the strike over and requested the enterprise to resume negotiations, a request that was quickly complied with. Showing its tolerance and readiness for dialogue, the enterprise increased its offer, including to re-examine within 20 days, following the signature of the collective agreement, the dismissals carried out during the strike; and to give a basket of basic foodstuffs to the employees who participated in the strike if they returned to work and if the agreement was signed by 30 September 1997. The trade union representatives rejected the agreement on 1 October 1997 and in a final attempt to avoid the involvement of the judiciary to settle the matter of the collective dismissal, the enterprise informed FENTECT that it would give it until 17 October 1997 to decide on the matter, receiving by way of reply the summons to further assemblies to establish the timetable for another strike scheduled for the beginning of December 1997. According to the Government, the claim that the ECT enterprise committed acts in violation of international standards ratified by Brazil is false.

138. Regarding the publication of a manual concerning anti-union practices, the Government notes that the manual summarizes a series of guidelines aimed at achieving good relations between employees and employers in the trade union sphere. The Government adds that the manual in question is no longer in use as it has been improved upon and updated by a set of more modern standards.

139. The Government also points out that the video referred to by the CUT shows the aggressiveness of the trade union leaders during the 1997 strike, and that the violence cannot be denied because the perpetrators can be clearly seen on the video.

140. The Government adds that the allegation whereby at the end of the strike the enterprise began a campaign of reprisals against the strikers and that the authorities engaged in a massive dismissal of the strikers is untrue. According to the Government, this is evidenced by a document signed by the members of the national committee for negotiations between the FENTECT and the ECT, consisting of the minutes of the meeting dated 14 November 1997 which includes the following entry as regards the collective labour agreement for 1997-98: the strikers who were absent from their workstations for over 15 days during the September strike shall receive, together with the November basket, the basket of basic foodstuffs to which they would have lost their entitlement under usual circumstances, recovering that entitlement by virtue of the agreement between the parties; and the enterprise undertakes to re-examine the dismissals for just cause that took place during the September 1997 strike within a period 20 days following the signing of the document containing the approval and acceptance of the basis of the collective agreement. As each re-examined dismissal is cancelled, the person concerned will be reinstated. The dismissals that are not rescinded may be re-examined if new facts or unexamined proof appear.

141. The Government declares with respect to the allegation that 1,500 workers were dismissed, including 300 trade union leaders, that the enterprise reviewed the dismissals of all the workers dismissed for just cause, which numbered no more than 157. Of these, 103 were reinstated, leaving the number of dismissed workers at 54. Finally, the Government explains that the dismissals mentioned by the CUT (over 1,500) were contractual rescissions that occurred approximately halfway through 1997, that is, prior to the strike in September 1997.

C. The Committee's conclusions

142. The Committee observes that the allegations in this case relate to a collective dispute between the Brazilian Post and Telegraph Enterprise and the National Federation of Workers of Post and Telegraph and Similar Enterprises (FENTECT) which led to, during the negotiation of a collective agreement and following the holding of a strike, the massive dismissal of strikers (1,500 workers including, according to the complainant, 300 trade union leaders or representatives). Also, the Committee notes the complainant's allegations that the enterprise in question: (i) screened a video containing false information relating to the trade union and the strike; (ii) is not allowing the trade union leaders access to the workplace and is placing restrictions on freeing trade union leaders from their professional obligations in order to exercise their trade union activities; and (iii) published a manual on labour relations that contained anti-union provisions.

143. As regards the massive dismissal of strikers following a strike against the background of negotiating a collective agreement, the Committee notes the Government's statements that: (1) despite the fact that negotiations were under way, the trade unions affiliated to FENTECT began unjustified strike action, violating the negotiation process; (2) the enterprise's efforts to achieve a successful outcome to the negotiations did not prove sufficient for an agreement to be reached and, dissatisfied with the situation and in accordance with the basic rules of any negotiations, the enterprise had no alternative but to withdraw its proposal and make the resumption of negotiations conditional on the strike coming to an end; (3) the actions of the trade union organizations concerned were contrary to legislation governing strikes, particularly as regards the authorization given by assemblies that cannot declare strike action without giving legal notice, a requirement which is not met by simply communicating the possibility of strike action in lieu of the requirements and procedures stipulated in Act No. 7783/94; (4) the strikers committed acts of violence and vandalism, including damage to public property, offences against employees, enterprise management and users, physical assault against employees and forced entry into public property; (5) given the serious misdemeanours committed, the enterprise dismissed with just cause 157 striking workers; (6) in the framework of the collective agreement for 1997-98 concluded in November 1997, it was provided that the enterprise would undertake to re-examine the dismissals that occurred during the September 1997 strike within a period of 20 days from the signature of the document containing the approval and acceptance of the basis for the collective agreement; as each re-examined dismissal was cancelled, the person concerned would be reinstated; and the dismissals that were not rescinded could be re-examined if new facts or unexamined proof appeared; (7) the enterprise reviewed the dismissals, of which there were no more than 157, and 103 of these workers were reinstated, leaving the total number of dismissals at 54; and (8) the dismissals mentioned by the CUT (over 1,500) concerned contractual rescissions that occurred approximately halfway through 1997, that is, before the strike of September 1997.

144. The Committee notes that the Government denies that 1,500 dismissals took place, while acknowledging that in the framework of a strike held at the end of September 1997 150 strikers were dismissed and emphasizing that the trade unions that declared the strike did not respect the legal period of notice and that the dismissed workers committed acts of violence and vandalism, including damage to public property, offences against employees, enterprise management and users, physical assault against employees and forced entry into public property.

145. The Committee observes with interest that following the dispute, the parties concluded a collective agreement for 1997-98 in which the enterprise undertook to re-examine the dismissals, having already reinstated 103 workers. This being the case, the Committee requests the Government to inform it about the grounds for the dismissals of the 54 remaining workers.

146. Regarding the allegation concerning the screening of a video containing false information about the trade union and the strike by the enterprise's administration, the Committee notes the Government's declaration that the video shows the aggressiveness of the trade union leaders during the strike held in September 1997 and that the violence cannot be denied because the perpetrators can clearly be seen in the film in question. In this respect, the Committee considers in any case that it would not be in a position to determine whether or not the content of the video is a true representation of reality.

147. With respect to the publication by the ECT enterprise of a manual on labour relations (forwarded by the complainant) aimed at discrediting the trade unions, the Committee observes that the manual contains provisions relating to disciplinary measures for strikers, involvement of family members of possible strikers, preventive measures in respect of security, etc. The Committee notes the Government's declaration that the manual is no longer in use as it has been replaced by more modern regulations. This being the case, the Committee requests the Government to send it a copy of the new labour relations regulations at the ECT enterprise in order to be able to compare them with the previous regulations.

148. With reference to the allegation concerning the placing of restrictions on trade union leaders being freed from their professional obligations to exercise their trade union activities, the Committee observes that the Government has not sent its observations on this matter. The Committee also notes that the collective labour agreement for 1997-98 (the period to which the allegations relate; the Government attaches a copy of the agreement to its reply) made provision in clause 29, subclauses 1, 2 and 3 that a certain number of leaders of the trade unions of the enterprise and of FENTECT should be freed from their professional obligations to carry out their trade union activities. This being the case, the Committee stresses the importance it attaches to adherence to the provisions of collective agreements freely negotiated by the parties. The Committee requests the Government to provide information on compliance with such provisions in practice.

149. Lastly, the Committee requests the Government to send its observations concerning the allegation relating to the impossibility, following the September 1997 strike, for the trade union leaders to have access to the workplace.

The Committee's recommendations

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

(a) The Committee requests the Government to inform it of the grounds for the dismissal of 54 workers following the strike held in September 1997 of the Brazilian Post and Telegraph Enterprise (ECT).

(b) The Committee requests the Government to send it a copy of the new labour relations regulations at the Brazilian Post and Telegraph Enterprise (ECT), in order to compare them with the previous regulations.

(c) The Committee requests the Government to send its observations concerning the allegation about the impossibility, following the September 1997 strike at the Brazilian Post and Telegraph Enterprise (ECT), for the trade union leaders to have access to the workplace.

(d) The Committee requests the Government to provide information on compliance, in practice, with clause 29, subclauses 1, 2, and 3 of the collective agreement applicable to the ECT enterprise, which relates to time off from work for trade union leaders so that they can carry out their trade union activities.

Case No. 1997

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

Complaint against the Government of Brazil
presented by
the National Confederation of Workers in Water and
Air Transport, Fisheries and Ports (CONTTMAF)

Allegations: Interference by the authorities in the application
of a collective agreement

151. The complaint in this case is contained in a communication from the National Confederation of Workers in Water and Air Transport, Fisheries and Ports (CONTTMAF) dated 16 October 1998. The Government sent its observations in a communication dated 14 April 1999.

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

A. The complainant's allegations

153. In its communication of 16 October 1998, the National Confederation of Workers in Water and Air Transport, Fisheries and Ports (CONTTMAF) states that it has been informed by the trade unions of workers in the ports of the State of Rio Grande do Sul that after having engaged in collective bargaining in accordance with the laws and regulations governing the rights and freedoms enshrined in the Constitution of Brazil, they had signed a collective agreement with the representatives of the enterprises in this sector. The complainant alleges that on 1 September 1998, after numerous threats, the executive secretary of the Executive Group for Port Modernization (GEMPO) convened and held a meeting of port sector employers in a military facility in the city of Porto Alegre and ordered them to denounce immediately the collective agreement that had been concluded by mutual consent between the workers and the employers. According to the complainant, the executive secretary cited among other reasons the fact that the collective agreement was not to his liking and fixed a 30-day time limit for the enterprises in this sector to stop complying with the agreement, failing which coercive measures would be applied, such as a tax audit, withdrawal of their authorizations and the imposition of fines.

B. The Government's reply

154. In its communication dated 14 April 1999 the Government explains that on 27 April 1995 the President of the Republic, through Decree No. 1467, established the Executive Group for Port Modernization (GEMPO) in order to coordinate the necessary measures to modernize the Brazilian port system and ensure full application of the provisions laid down in Act No. 8630/93. The Government states that section 2 of the Decree provides that measures shall be adopted to establish a new system of relations between workers and users of port services, in accordance with Act No. 8630 of 1993, and that measures shall be adopted in order to ensure the effective functioning of the manpower administration bodies and the port authorities and to streamline the structures and procedures of the port administrations. Since the Decree was promulgated, the GEMPO has adhered faithfully to the Government's commitment to modernize every aspect of Brazilian port life, in a democratic manner, and in the spirit of Act No. 8630/93, which values negotiation as the prime component of labour-management relations, by trying out a model for the privatization of port activities and devolving a substantial part of the decision-making authority that had previously belonged to the State to the local port community. The GEMPO has gradually introduced the changes prescribed by the Act, with broad participation of the port community and society itself and giving considerable attention to social aspects, to ensure that everyone benefits from the modernization process.

155. The Government states that in Porto Alegre the trade union leadership has obstructed the application of this Act in order to maintain a status quo that has become entrenched over the decades and is characterized by unacceptable abuses on the part of the trade unions, using the powers granted to them by the State in the past to administer the supply of temporary labour, which ultimately became a means of serving the interests of the few to the detriment of the vast majority of workers. These trade union leaders wish to maintain this shameful chapter in the history of Brazilian ports, which is characterized by the obligation to hire workers in excess of actual needs, by illegal preferential treatment of some workers to the detriment of others, and even the conclusion of collective agreements that are in blatant violation of the national legislation.

156. In this context, states the Government, the executive secretary of the Executive Group for Port Modernization (GEMPO) convened and held a meeting of employers in the Porto Alegre harbourmaster's office (public facilities that are accessible to Brazilian citizens) at which he advised employers to denounce the collective agreement for the sector on grounds of abuses committed by the trade unions under cover of this agreement, which had given rise to investigations into the management of the Manpower Administration Body (OGMO) by the labour inspectorate, in accordance with the legislation in force. The Government explains further that the unfortunate collective agreement had illegally transferred to the trade unions responsibilities which under Act No. 8630/93 should be assumed by the OGMO and that the trade unions had in fact committed all kinds of abuses as a result of this illegal transfer of powers. The Government rejects the allegation that the executive secretary of the GEMPO had threatened the enterprises with tax audits and withdrawal of their authorizations and adds that the meeting in question had been held at the request of some of the port operators wishing to straighten out the chaotic situation prevailing in the OGMO of Porto Alegre, which had given rise to investigations by the labour inspectorate.

157. Lastly, the Government states that the executive secretary of the GEMPO acted within the legal powers vested in him by the national legal system and in defence of the interests of society and the workers themselves. As regards the meeting held on 1 September 1998, the Government points out that the executive secretary discussed with those present the need for appropriate restructuring of the OGMO of Porto Alegre as soon as possible, in the light of the investigations carried out by the inspectorates of the Ministry of Labour and the National Social Security Institute. The executive secretary also advised the enterprises to lodge complaints with the labour courts against the unfortunate collective agreement, since it was contrary to the legislation in force, in particular with regard to the powers vested in the OGMO, which could not be delegated.

C. The Committee's conclusions

158. The Committee observes that in this case the complainant alleges that the authorities of the Executive Group for Port Modernization (GEMPO) convened a meeting of the enterprises of the port sector of the State of Rio Grande do Sul and ordered them to denounce the collective agreement that had been concluded with the trade unions of workers of the sector, fixing a 30-day time limit for them to stop complying with the agreement, failing which coercive measures would be applied (tax audits, imposition of fines, etc.).

159. The Committee notes that, according to the Government, at the request of some port operators wishing to straighten out the chaotic situation prevailing in the Manpower Administration Body of Porto Alegre (which had given rise to investigations by the labour inspectorate), the executive secretary of the GEMPO had convened and held a meeting of port sector employers in the Porto Alegre harbourmaster's office, advising them to denounce the collective agreement in the sector (1) on grounds of abuses committed by the trade unions under cover of the agreement, which had given rise to investigations into the management of the Manpower Administration Body (OGMO) by the labour inspectorate, and (2) on the grounds that the collective agreement contained provisions contrary to the legislation in force. The Committee also notes that the Government rejects the allegation that the enterprises in the port sector had been threatened with the application of sanctions for complying with the collective agreement.

160. The Committee notes, firstly, that, as regards the holding and proceedings of the meeting with the enterprises of the port sector of the city of Porto Alegre that had been convened by the GEMPO, the versions of the complainant and the Government contradict each other: according to the former, the GEMPO "ordered" the enterprises to denounce the collective agreement, while according to the Government the GEMPO "advised" the enterprises to do so. In this respect, the Committee observes that under the provisions of Decree No. 1467/95 establishing the Executive Group for Port Modernization (GEMPO), the authorities of that body are empowered to hold a meeting in the event of problems arising in the management of the Manpower Administration Body of Porto Alegre (section 2(iv) of the Decree provides that: "it is the responsibility of the GEMPO: to adopt measures aimed at ensuring the effective functioning of the manpower administration bodies").

161. Moreover, the Committee observes that at the time of the examination of this case (more than eight months after the meeting convened by the GEMPO was held) neither the complainant nor the Government have informed it that the enterprises of the Porto Alegre port sector have denounced the collective agreement as a result of the meeting to which the complainant objected or that sanctions have been applied to them for complying with the agreement in question. In these circumstances, the Committee requests the complainant and the Government to keep it informed in this respect.

The Committee's recommendation

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

The Committee requests the complainant and the Government to keep it informed on whether the enterprises of the Porto Alegre port sector have denounced the collective agreement as a result of the meeting to which the complainant objected and to indicate whether sanctions have been applied to them for complying with the agreement.

Case No. 1989

Interim report

Complaint against the Government of Bulgaria
presented by
-- the Trade Union of the Engine Personnel of
Bulgaria (TUEPB) and
-- the Trade Union Section of the TUEPB at the
Sofia United Engine Depot

Allegations: Violation of the right to strike; discrimination on
the basis of trade union activities; and harassment
and victimization of trade unionists

163. The Trade Union of the Engine Personnel of Bulgaria (TUEPB) and the Trade Union Section of the TUEPB at the Sofia United Engine Depot presented a complaint of violations of freedom of association against the Government of Bulgaria in an undated communication, received 6 October 1998. Further allegations and information were provided in a communication dated 9 February 1999. The Government forwarded its response to the allegations in a communication dated 1 March 1999.

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

A. The complainants' allegations

165. In their communication received 6 October 1998, the Trade Union of Engine Personnel of Bulgaria (TUEPB) and the Trade Union Section of the TUEPB at the Sofia United Engine Depot allege that as a result of actions arising out of a warning strike of engine drivers, freedom of association standards and principles have been violated. In particular, it is alleged that the right to strike has been violated through the biased application of vague laws, the requirement of an agreement as to minimum services, and unreasonable prerequisites in order for a strike to be lawful. It is further alleged that engine drivers dismissed following the strike action were discriminated against on the basis of trade union activities. In their communication of 9 February 1999, the complainants allege further that members of the TUEPB have been under pressure to withdraw from the union.

166. As background, the complainants state that they are members of the Union of the Transport Trade Unions of Bulgaria, which is a member of the Confederation of Independent Trade Unions of Bulgaria. TUEPB has 2,456 members and the Sofia United Engine Depot has 487. The members of TUEPB and the Sophia United Engine Depot are mainly engine drivers, but they also represent other personnel, such as aides to engine drivers and repair workers.

167. The complainants state that TUEPB had strongly supported the present Government's coming into power in April 1997, and thus had made no demands and taken no action concerning the problems with the Bulgarian State Railway (BSR) for over six months thereafter. At the end of 1997, since there had been no improvement in the BSR, the members of TUEPB in various forums began to demand that action be taken to press for a salary increase. Several meetings were held between the leadership of TUEPB and BSR and on 21 November 1997 a protocol was signed agreeing that a project for increasing the engine drivers' salary would be discussed. Since no such project was realized and no discussions were undertaken for two months, on 22 January 1998 the Executive Committee of TUEPB presented a declaration in writing to the Director-General of BSR which included demands in the context of a labour dispute, as required by article 3(2) of the Act on Collective Labour Disputes, 1990. The principal demand was a salary increase of four times the average salary in the public sector. In accordance with article 3(3) of the Act, TUEPB also insisted that negotiations commence within seven days and put forward the names of five TUEPB representatives to take part in the negotiations.

168. As a result of TUEPB's declaration, a meeting was held on 30 January 1998 with BSR. The TUEPB representatives reaffirmed the demands and stated their intention to commence dispute settlement procedures. BSR made two offers concerning the salary increase for TUEPB to discuss. The TUEPB representatives suggested that a protocol be signed by the two parties setting out the agreements, but BSR refused; therefore, the protocol of 30 January was signed only by TUEPB. TUEPB continued to seek the cooperation of BSR to settle the labour dispute, and another meeting was held on 10 February 1998. On 20 February 1998, the TUEPB representatives notified in writing the Minister of Transport of their demands and their intention to take strike action in the absence of an appropriate response, and requested a meeting to negotiate. A meeting was held with the Chairperson of the Board of BSR but no agreement was reached.

169. According to the complainants, on 5 March 1998 a meeting of 150 engine drivers was held in Sofia, resulting in another declaration being made to the Minister asking that negotiations continue and warning that in the absence of a response they would take strike action. As no reply was received from the Ministry, and in keeping with its commitment to the interests of the members, TUEPB prepared to take strike action.

170. The complainants point out that pursuant to the Act on Collective Labour Disputes, a strike must be authorized by a majority of the workers (whether trade union members or not) in a respective enterprise or unit (article 11(2)). The decision was taken in the Sofia United Engine Depot and in other engine depots to commence with "warning" strikes, which under the Act on Collective Labour Disputes do not require preliminary notice. The complainants state that the support of the workers for the warning strikes was overwhelming. They submit that there is no doubt that they could easily have taken a decision for a full strike, but that the decision for a warning strike demonstrated their good will and their willingness not to resort to extreme forms of protest.

171. On 12 March 1998 the engine drivers on duty brought the trains to a halt for one hour wherever they were. The complainants submit that since most of the engine drivers wanted to take part in the warning strike and were working on shifts, the trains were stopped not only on 12 March but also during the seven days following, each day for one hour. The workers believed that they were involved in a legitimate warning strike, since the Act is vague on this point and does not expressly exclude a warning strike on different days, particularly where the employees are working in shifts. The complainants cite a decision of the Burgas Regional Court of 30 March 1998 interpreting such type of repeated action with different people working on shifts as a legitimate warning strike within the meaning of the Act on Collective Labour Disputes.

172. The complainants assert that the action of the engine drivers was met with "aggressive propaganda" against the strikers from the Government and the BSR, in particular through the government-controlled media, which created a hostile climate. The warning strikes came to an end after an agreement was reached on 21 March 1998 which provided that the BSR would present new internal rules for remuneration to the satisfaction of TUEPB by 15 April 1998.

173. The complainants go on to provide information concerning the court proceedings taken by BSR following the strike action. Claims that a strike is unlawful are heard by the regional courts, the decision of which is final. The complainants contend that there is, therefore, no appeal court to set standards for the unified application of the law at the national level, resulting in contradictory decisions, and making it impossible for workers to orient their actions clearly and rationally. It is further submitted that this thus opens the door for arbitrary action on the part of employers and public authorities.

174. The complainants submit that the jurisprudence of the regional courts concerning the TUEPB warning strikes demonstrates the deficiencies of the framework established by the Act on Collective Labour Disputes. All the regional courts declared the strikes unlawful but the reasons differed and were often contradictory. The complainants submit that the decisions were adopted in an atmosphere of a hostile public campaign, and are biased in that they adopted an extremely formalistic approach and used the vagueness of the law to the detriment of the workers. The complainants divide the reasons for declaring the strike unlawful into five categories, and note that while some of these reasons were accepted by some of the courts, they were rejected by others:

(i) a warning strike can last for only one hour on one day and not on several consecutive days, thus all the prerequisites for a full strike should have been fulfilled;

(ii) the declaration of 22 January 1998 was not accepted as a valid presentation of the workers' demands;

(iii) the negotiations were unilaterally and unjustifiably terminated by TUEPB. These rulings, state the complainants, seem to impose on the workers a burden of negotiation that makes it virtually impossible to undertake strike action;

(iv) it was not proven that the strike had been authorized by a majority of the workers. The protocols of the meetings attesting that more than half of the workers in the depot voted in favour of the strike were not accepted as adequate proof (and the Act does not set out any particular procedure). In some cases, the courts relied on formalities to the detriment of the workers, for example the lack of all identity numbers in the petitions, in essence making a strike impossible;

(v) in one case the court ruled that there was not one but several consecutive warning strikes and that all the requirements of the Act, except the seven- day notice period, should have been met, including the requirement that an agreement on minimum services be concluded at least three days before the strike. The complainants submit that the imposition of this requirement is contrary to the principles of freedom of association since railways are not considered "essential services" by the ILO supervisory bodies.

175. As the Act on Collective Labour Disputes allows for disciplinary action to be taken for the participation in an unlawful strike, the complainants state that BSR immediately took the opportunity to impose disciplinary sanctions as soon as the protest actions were declared unlawful. Eighteen people were dismissed, most of whom were trade union organizers. The complainants submit that this was in violation of the Labour Code, article 333(3) of which provides that an employer may dismiss a trade union leader only with the prior consent of the trade union body. TUEPB was specifically made a target of the disciplinary action, and it is contended further that trade union organizers were dismissed even when they were not among the workers who had been subject to court proceedings. An example is given of the dismissals at the Sofia United Engine Depot, where none of the four workers dismissed appeared on the list of strikers of the relevant court decision. On 21 May 1998, the Union of the Transport Trade Unions sent a letter to the BSR with a list of trade union organizers whose dissmissal it did not authorize. Despite this letter, most of the dismissals took place.

176. The complainants assert that the dismissal of the engine drivers who took part in the strike and of those believed to have been organizers when they did not in fact take part in the strike, amounts to anti-union discrimination. TUEPB organizers and leaders were targeted, according to the complainants and, in any event, the sanctions imposed were disproportionate. The complainants call for the immediate reinstatement of the dismissed workers, with back pay and the costs of the legal procedures. They also call for a revision of the Act on Collective Labour Disputes with a view to defining clearly the exercise of the right to strike, including with respect to the negotiating procedure, the strike ballot and the concept of essential services.

177. In their communication of 9 February 1999, the complainants state that in December 1998 and January 1999, a number of members of TUEPB, mainly from the Sophia United Engine Depot, faced extensive pressure from the leadership of the BSR to withdraw from the union. Members have been told the following:

(i) quit the union or they would "make their lives poor";

(ii) switch their membership to the Trade Union of Railway Workers;

(iii) members of TUEPB would be placed on a disadvantageous work schedule or "altogether shifted" (to drive non-passenger trains);

(iv) the union was going to be "destroyed" soon;

(v) those who remained members of TUEPB would be fired or otherwise affected by future personnel cuts.

178. The complainants state further that on 1 February 1999, the President of TUEPB brought these facts to the attention of the Director-General of BSR and asked him to suspend two BSR instructors who were involved in the "talks" with the members. On 3 February 1999, the President of TUEPB filed a report summarizing the above-noted complaints. No response has yet been received from BSR. The complainants submit that the threats were motivated by the fact that the TUEPB filed this complaint with the ILO, in violation of trade union freedom to file a complaint.

B. The Government's reply

179. In its communication of 1 March 1999, the Government states that even prior to the submission of the complaint to the Committee, the Government contributed to the reinstatement of the temporarily dismissed workers. At the same time, and again with the help of the Government, the disciplinary dismissals of a significant number of the workers were cancelled. Upon receiving the information concerning the complaint, the Minister of Labour and Social Policy organized a meeting of the parties to discuss the claims, and an agreement was reached on the need to amend the Act on Collective Labour Disputes concerning strikes at the branch and national levels. After the Government's observations on this case had been elaborated, a second meeting with the complainants was held where they were acquainted with these observations. Concerning the claim for reinstatement, the Government emphasizes that this is within the competence of the courts, the decisions of which are binding on both parties. The Government expresses the commitment to intervene "according to its competence" should the employers violate the court decisions favourable to the workers.

180. The Government states that Bulgarian labour legislation proclaims and establishes the right to freedom of association. The right to trade union association is recognized by the Constitution as one of the basic citizens' rights. The Labour Code further develops this right, including providing for the right to establish trade unions freely, which can adopt their programmes and statutes freely, no prior authorization is required, state authorities and employers are obliged to create conditions for and cooperate with trade unions in carrying out their activities, the right to paid leave to carry out trade union activities, protection from dismissal of trade union leaders, and representation before the court. The Government submits that the rights of TUEPB have not been violated: TUEPB has been treated on equal terms with the other trade unions and benefits from the opportunities provided by law.

181. With respect to the right to strike, the Government states that, with ILO assistance and as part of the democratic changes, the right to strike was recognized and regulated for the first time in 1990 with the adoption of the Act on Collective Labour Disputes. The right is also recognized in the country's Constitution of 1991. Due to the special features of the activities carried on by railway workers, it is regulated by special legislation -- Decree No. 9 concerning the work of the railway personnel and management, and a disciplinary statute. It is stated that the rules for labour discipline are essential due to the necessity of providing safe rail traffic.

182. Concerning the differing decisions of the courts as to the strikes, the Government states that it is not free to make an assessment as to the conformity of the courts' decisions with the law. What is important is that each court has drawn independently the same conclusion about the illegality of the action, and it is not appropriate to draw conclusions about restrictions on the right to strike on the basis of dissatisfaction expressed by one of the parties to the court proceedings. The Government asserts that the complainants do not clarify what in their view is the cause of the restriction on the right to strike -- court decisions or law, court procedures, or the substance of the individual right.

183. The Government states that the collective labour dispute concerned the increase of workers' salaries in the BSR. Workers and officials are represented in the dispute by trade unions in so far as other bodies and persons have not been authorized (Act on Collective Labour Disputes, article 1(2)). However, according to the Government, it is not clear what interests the TUEPB represents, since another trade union, namely the Trade Union of Railway Workers, concluded an agreement with the management of BSR for a 20 per cent wage increase of railway workers. Thus the dispute concerning the increase in remuneration in the railway system had already been settled through one of the voluntary means provided for in the Act on Collective Labour Disputes (article 3), without the necessity of taking strike action. As a result, the labour dispute concerning remuneration did not comply with the Act on Collective Labour Disputes. It is further submitted that TUEPB expressed the dissatisfaction of only one part of the workers in the BSR system, namely engine drivers, but even some engine drivers were members of the Trade Union of Railway Workers and the Confederation of Labour "Podkrepa". In order to claim an increase in remuneration for a given occupation in the BSR system, the complainants should have concluded a collective agreement by occupation under article 51(1) of the Labour Code rather than relying on the procedures under the Act on Collective Labour Disputes. The Government states that "the essence of the present complaint is that there is no collective labour dispute of BSR workers whose interests TUEPB pretends to represent".

184. As to the issue of the right of workers and officials to take strike action at the sectoral, branch and national levels, the Government concedes that there is a gap in the legislation, since only the procedures for announcing and carrying out a strike at the enterprise level are regulated by the Act on Collective Labour Disputes. The Government states that for this reason, in the context of labour legislation reform, it will submit a proposal for the improvement of the Act on Collective Labour Disputes and in this respect it agrees with TUEPB's demands.

185. The Government denies that there has been anti-union discrimination due to the sanctions imposed for unlawful strike action. It notes that the Act on Collective Labour Disputes allows disciplinary action to be taken for participation in an unlawful strike, but in order to impose a disciplinary sanction, the rights and procedures set out in the Labour Code (articles 186 to 198) must be fulfilled. Only if the gravity of the violation, the conditions under which it was done and the behaviour of the workers justify it, is the harshest disciplinary punishment chosen. Prior consent of the labour inspectorate for persons who are specifically protected under article 333 of the Labour Code shall be considered, and only then may the procedure to impose disciplinary penalties be continued under article 9(2) of Decree No. 9. The Government asserts that this was the manner in which the BSR management proceeded, led only by the responsibility of each railway worker and official for violations of labour discipline, in particular concerning the safety of railway transport. The Government points to protocol No. 8 of 2 May 1998 as evidence that disciplinary punishment was not imposed on the majority of the activists and, where it was, most were reinstated. However, those who committed major violations of labour discipline have been dismissed. The Government states in this regard that actions such as stopping the trains at way stations and endangering the railway traffic as a whole, or assaulting non-strikers cannot be tolerated. The criteria set out in article 45 of the Disciplinary Statutes were applied to each separate case prior to imposing disciplinary punishment: a determination is made of the gravity of the violation, the damage inflicted, the circumstances under which the disciplinary violation was carried out, and the behaviour of the worker or official. The legislation also provides that these workers may appeal against the termination of their employment. According to article 344 of the Labour Code, they have the right to demand recognition of the dismissal as unlawful and to be reinstated and compensated for the period of unemployment due to the dismissal. The legislation guarantees the right to return to work of the worker unlawfully dismissed. For not meeting the obligation to reinstate, the officials are subject to disciplinary, property, administrative and penal responsibility. At present, according to the Government, there is no enforceable court decision declaring the dismissals as a result of the strike unlawful and requiring reinstatement.

C. The Committee's conclusions

186. The Committee notes that this case concerns allegations of violations of the right to strike and dismissals based on trade union activities, arising out of warning strikes undertaken by the complainants and their members, mainly engine drivers, in support of a wage increase. The complainants also raise allegations of harassment and threatened victimization of TUEPB members who do not withdraw from the union.

187. With respect to the right to strike, the complainants contend that they put forward their demands and made attempts to negotiate in conformity with the Act on Collective Labour Disputes, 1990 ("the Act"). It was only after several fruitless attempts at reaching a settlement that the workers in the Sofia United Engine Depot and other depots decided to commence with warning strikes, pursuant to article 11(5) of the Act, which states that: "The workers may go on a warning strike without previous announcement. This warning strike may not last more than one hour." The complainants claim that the support of the workers for the warning strike was overwhelming. In order to ensure that all those working different shifts could participate in the warning strike, the trains were stopped on 12 March 1998 for one hour, and then for one hour on each of the following seven days.

188. The complaint concerns more particularly the conflicting reasoning supporting the court decisions arising out of the strike, and the lack of a further appeal procedure to ensure unified application of the law. The Committee notes that all the regional courts charged with determining the legality of the strikes held that the requirements of the Act had not been met; therefore, the strikes were declared unlawful. The complainants contest a number of aspects of the decisions as well as the absence of a further appeal procedure. First, the lack of clarity as to the requirements for holding a warning strike, since at least one court found that holding a strike for one hour on consecutive days was not in violation of the Act, whereas others ruled that it was. Secondly, as some of the courts had found that TUEPB did not make sufficient efforts to negotiate, the complainants submit that the negotiation requirement has been interpreted in such a way as to make strikes impossible in practice. Thirdly, some of the courts found that there was insufficient proof that the strikes had been supported by a majority of the workers, as required under article 11(2) of the Act, thus, in the view of the complainants, again making it virtually impossible to call a legal strike. Finally, the minimum service requirement under article 14 of the Act is alleged to be in violation of freedom of association principles.

189. While noting that the reasons of the various regional courts concerning the warning strikes differ, the Committee does not consider that the lack of an appeal procedure is in violation of freedom of association principles, since responsibility for declaring a strike illegal already lies with an independent body [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522]. Regarding the determination of whether sufficient efforts to negotiate had been made before taking strike action, the Committee notes that a strike may be temporarily restricted by law until all procedures available for negotiation have been exhausted, as long as the legal procedures are not so complicated as to make it practically impossible to declare a legal strike [see Digest, op. cit., paras. 499, 501].

190. Concerning the support required to declare a legal strike, the Committee notes that the means of determining the level of support is not set out in the Act, as article 11(2) merely states that "the decision to go on strike is made by the workers in a respective enterprise of unit with a simple majority". Given that some courts appear to have accepted the evidence of majority support provided by the complainant whereas others did not, the Committee notes that the lack of precision in the Act on this point could lead to difficulties. The Committee also notes that, as has also been raised for a number of years by the Committee of Experts on the Application of Conventions and Recommendations, article 11(2) requires the support of a majority of all workers, rather than the majority of those casting ballots. The Committee recalls that, while it has considered in the past that the obligation to observe a certain quorum may be acceptable [see Digest, op. cit., para. 510], the Committee has stated clearly that "the requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike" [see Digest, op. cit., para. 508]. The Committee, therefore, requests the Government to take the necessary steps to amend this provision so that account is taken only of the votes cast. The Committee also draws this aspect of the case to the attention of the Committee of Experts.

191. The Committee notes that article 14 of the Act provides that a written agreement must be concluded between the workers and the employers at least three days prior to a strike, ensuring "the conditions for the realization of the activities, the non-fulfilment or stoppage of which during the strike may create risks for: (1) satisfying daily and public services and transportation of the population ...". The Committee recalls that transport services are not essential services in the strict sense of the term [see Digest, op. cit., para. 545] and has in general accepted that it is legitimate for a minimum service to be maintained in the event of a strike in the rail transport sector [see Digest, op. cit., para. 567].

192. The Committee notes with interest the Government's statement that it intends to submit a proposal for the improvement of the Act concerning the right of workers to take strike action at the sectoral, branch and national levels. In the context of this legislative reform, the Committee requests the Government also to consider amendments to overcome some of the difficulties caused by the vague provisions referred to above, and to consult with the concerned parties in the course of the reform process.

193. On the issue of anti-union discrimination, the Committee notes the serious allegations that 18 people were dismissed as a result of the strike, most of whom were trade union organizers, some of whom did not participate in the strike. According to the complainants, TUEPB organizers and leaders were targeted for dismissal. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724]. The Committee notes that the Government states that it has contributed to the reinstatement of some of the temporarily dismissed workers, and has had a "significant number" of the disciplinary dismissals cancelled. The Committee requests the complainants and the Government to provide specific information concerning those workers who have not been reinstated, and the reasons given to justify their dismissal. The Committee also requests the Government to provide copies of Decree No. 9 concerning the work of the railway personnel and management and the disciplinary statute.

194. The allegation of anti-union dismissals is closely linked to the allegation that TUEPB members are being pressured, through threats, to withdraw from the union and to join the rival Trade Union of Railway Workers. The Committee notes the importance of the principle that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom [see Digest, op. cit., para. 274], and no person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned [see Digest, op. cit., para. 693]. The Committee notes that the Government has not replied to this allegation, and requests it to do so.

The Committee's recommendations

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

(a) Concerning the majority support required pursuant to article 11(2) of the Act on Collective Labour Disputes to declare a legal strike, the Committee requests the Government to take the necessary steps to amend this provision so that account is taken only of the votes cast.

(b) Noting with interest the Government's statement that it intends to submit a proposal for the improvement of the Act on Collective Labour Disputes concerning the right of workers to take strike action at the sectoral, branch and national levels, the Committee requests the Government, in the context of this legislative reform, to consider amendments to overcome some of the difficulties caused by the vague strike provisions of the Act, in particular concerning how the requisite majority support is to be determined, and to consult with the concerned parties in the course of the reform process.

(c) The Committee requests the complainants and the Government to provide specific information concerning the workers dismissed as a result of the strike who have not yet been reinstated, and the reasons given to justify their dismissal. The Committee also requests the Government to provide copies of Decree No. 9 concerning the work of the railway personnel and management and the disciplinary statute.

(d) Noting the importance of the principle that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom, and that no person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned, the Committee requests the Government to reply to the allegation that TUEPB members are being harassed and threatened by BSR to withdraw from the union.

(e) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1934

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

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; dismissal
of trade unionists; pressure on and threats
against trade unionists

196. The Committee examined this case at its November 1997 meeting during which it formulated a number of interim conclusions [see 308th Report, paras. 85-138, approved by the Governing Body at its 270th Session in November 1997]. At its meeting in November 1998 [see 311th Report, paras. 111-132, approved by the Governing Body at its 273rd Session], the Committee formulated again a number of interim conclusions.

197. The Government sent new observations in a communication dated 21 January 1999.

198. 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

199. The World Confederation of Labour (WCL) submitted allegations of 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 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, 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 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.

200. The Government for its part 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. With regard to the establishment of SLORC, the Government claimed that, since the promulgation of the Labour Code, the union had 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 stated 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. With regard to the dismissal of 13 workers at the Tack Fat Garment factory, the Government stated that investigations produced no evidence that the dismissals had been carried out for anti-union motives. The Government stated 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.

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

(a) With regard to the registration of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee urges the Government to indicate without delay whether this trade union organization, which was formed almost two years ago when it deposited its rules with the competent authority, has been registered.

(b) With regard to the violations of the right to collective bargaining, the Committee requests the Government to inform it whether negotiations have taken place between SLORC and the employers in the clothing industry.

(c) In respect of the right to strike, the Committee requests the Government to ensure that the right to strike is fully respected.

(d) With regard to the dismissals of workers, the Committee requests the Government to: (i) adopt measures to reinforce protection against anti-union discrimination and to review the situation of the trade union leaders and workers at the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial 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 workers in question; and (ii) to provide more specific information on the manner in which the cases of the two workers dismissed from the Golden Time and Winner Garment factories were dealt with. The Committee requests the Government to keep it informed in this regard.

B. The Government's new reply

202. In its communication of 21 January 1999, the Government, with regard to the registration of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), states that, in response to the recommendations of the Committee, the Ministry of Social Affairs, Labour, Vocational Training and Youth Rehabilitation (MOSALVY) has registered the SLORC on 25 December 1998, despite the fact that this union refused to correct its structure. On this point, the Government is asking for the technical assistance of the ILO in order for the ILO to directly advise the SLORC to modify its structure.

203. With regard to collective bargaining, the Government states that the SLORC has bargained collectively with a number of employers of garment factories, particularly with the employers of Cambodia Garments Ltd. and Integrity Apparels Pte. Ltd. in December 1996 and January 1997 and it has succeeded in concluding collective agreements with these factories. The Government also explains that workers can file their complaints with the MOSALVY through the SLORC and that the MOSALVY has never failed to settle any dispute submitted to it through this trade union.

204. With respect to the right to strike, the Government reiterates its position according to which it has always recognized the right of workers to wage strikes but cannot accept illegal strikes, particularly non-peaceful strikes or strikes waged for purposes other than those serving the interests of the workers. On this issue, the Government, through the MOSALVY, is asking the ILO to indicate its position concerning illegal strikes and what action should be taken by the Cambodian Government in cases of such strikes.

205. With regard to the dismissals of workers, the Government indicates firstly that, in order to promote a more effective protection of workers, the MOSALVY has successively issued ministerial orders and various normative documents on this issue. The MOSALVY has also conducted dissemination courses, training courses and seminars for workers, trade union leaders, shop stewards, employers and competent officials of the MOSALVY, including courses sponsored by the ILO. As for the dismissal of workers and trade union leaders of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd., the Government indicates that the MOSALVY has already made in-depth investigations into these cases and that the matters were settled as it was reported to the Committee in its two previous examinations of the case. No new elements related to these cases have been noted since.

206. Concerning the dismissal of the two workers from the Golden Time and Winner Garment factories, the Government explains that the first complainant was requested to provide information on the dispute on 12 March 1997 at 2.30 p.m., but she failed to appear at the scheduled time. According to the Government, the complainant has not taken the complaint seriously or shown any responsibility. The Government goes on to explain that, according to Ministerial Order No. 145 MSALVA of 21 April 1997, if the complainant fails to provide information without reason the complaint is considered null and void. It states further that, according to article 300 of the Labour Code, the complainant can file its complaint with the Labour Court in the case that settlement of the labour dispute by conciliation procedure fails. This was not done by the first complainant. In the case of the second complainant, the Government indicates that she filed her complaint with the Department of Labour Inspection on 3 March 1997 by accusing the factory manager of dismissing her because she had complained over her wage. For his part, the factory manager declared that he had dismissed her because she was incompetent in her work. The Government indicates that the Department of Labour Inspection had successfully conciliated the parties on 19 March 1997 when the complainant agreed to receive US$50 as indemnity instead of reinstatement. Finally, the Government states that, in trying to settle the above two labour disputes, the MOSALVY had tried to abide by the opinion given by the ILO experts during the training courses for labour dispute conciliators held in February 1997 in Phnom Penh. In this regard, the Government declares that, if the ILO considers that the above settlements are not fair, it is ready to welcome an ILO mission to Cambodia in order to give advice to settle these disputes on a case-by-case basis.

C. The Committee's conclusions

207. The Committee recalls that this case, which it has examined already on two occasions, concerns allegations of violations of the right to freely 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.

208. With regard to the recognition of the Workers' Free Trade Union of the Kingdom of Cambodia (SLORC), the Committee notes with interest that the SLORC has been registered on 25 December 1998.

209. With regard to collective bargaining, the Committee notes the statement of the Government according to which the SLORC has bargained collectively with a number of employers of garment factories and that it has succeeded in concluding collective agreements with these factories.

210. Concerning the right to strike, the Committee takes note of the Government's statement as well as its request for the ILO to clarify its position on illegal strikes. In this regard, the Committee recalls that, while it accepts that the right to strike may be restricted or prohibited in certain limited circumstances, 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. The right to strike may be restricted or prohibited in the public service only for public servants exercising authority in the name of the State or 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. But in any event, final decisions concerning the illegality of strikes should not be made by the Government, especially in those cases in which the Government is a party to the dispute [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 522, 523 and 526]. Thus, the Committee requests the Government to take into account these principles in the future with regard to the exercise of the right to strike.

211. With regard to the dismissal of workers, the Committee takes note of the Government's explanation concerning its review of the situation of these dismissed workers as well as its attempts for conciliation and the results obtained. The Committee can only reiterate what it has stated in its previous examinations of the case, namely 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 respect, the Committee once again requests the Government to review the situation of the dismissed trade union leaders and workers of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial 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 workers in question, and to keep it informed in this regard. Furthermore, the Committee has stated in the past that it would not appear that sufficient protection against acts of anti-union discrimination 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. Moreover, legislation should make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination [see Digest, op. cit., paras. 707 and 743]. In this respect, the Committee requests the Government to introduce in its legislation measures granting effective protection against acts of anti-union discrimination and to keep it informed in this regard.

212. Finally, the Committee notes that the Government indicated its desire to receive technical assistance from the Office. The Committee encourages the Government to request the assistance of the competent units of the Office in order to address the various problems it faces.

The Committee's recommendations

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

(a) With regard to the right to strike, the Committee requests the Government to take into account in the future the principle according to which the decision concerning the illegality of a strike should not be made by the Government but by an independent body which has the confidence of the parties involved.

(b) With regard to the dismissal of workers, the Committee requests the Government to review the situation of the dismissed trade union leaders and workers of the Tack Fat Garment factory and the factory of SAMHAN Fabrics Co. Ltd. within the framework of impartial 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 workers in question and to introduce in its legislation measures granting effective protection against acts of anti-union discrimination and to keep it informed in this regard.

(c) Noting the Government's desire to receive technical assistance from the Office, the Committee encourages the Government to request such assistance from the competent units of the Office in order to address the various problems it faces.

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 of school principals and vice-principals
to organize, bargain collectively and strike; lack of protection
against anti-union discrimination and employer interference

214. The Committee examined the present case during its November 1998 meeting and presented an interim report to the Governing Body [see 311th Report, paras. 170-234, approved by the Governing Body at its 273rd Session (June 1998)].

215. The Government sent additional observations in a communication dated 16 March 1999.

216. 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

217. The Committee's previous examination of the case concerned the consequences of the Education Quality Improvement Act, 1997 (Bill 160), adopted on 1 December 1997, which substantially amended the Education Act governing labour relations in the education sector. The Committee's examination of the case focused in particular on the scope of collective bargaining in the education sector pursuant to Bill 160, the exclusion of principals and vice-principals from bargaining units, and the lack of adequate consultation with the parties concerned which should have preceded the adoption of Bill 160.

218. The Committee formulated the following recommendations [see 311th Report, para. 234]:

(a) The Committee requests the Government, if it considers that subjects such as class size should be determined outside the process of collective bargaining, to ensure that the teachers' unions concerned are fully consulted in this regard.

(b) The Committee requests the Government to enable free collective bargaining to take place on the consequences on conditions of employment of decisions on educational policy, and to keep it informed of developments in this regard.

(c) The Committee requests the Government to inform it of the outcome of the case before the Ontario Court of Appeal concerning the impossibility for principals and vice-principals to join teachers' unions under the Labour Relations Act, and to forward a copy of the court's decision as soon as it is rendered.

(d) The Committee 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.

(e) The Committee requests the Government to ensure in future that consultations in good faith are undertaken regarding any changes in the bargaining structure, in such circumstances that the parties have all the information necessary to make informed proposals and decisions.

(f) 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.

(g) 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.

B. The Government's reply

219. In its communication of 16 March 1999, the Government indicates that the Ontario Court of Appeal is still considering the case concerning the impossibility for principals and vice-principals to join teachers' unions under the Labour Relations Act, 1995 (the main law governing labour relations). The Government states that it will inform the Committee of the court's decision once it has been rendered.

220. With respect to the issue of ensuring that principals and vice-principals have access to machinery and procedures that facilitate collective bargaining, the Government states that since 1 January 1998 three provincial associations of principals and vice-principals have been established, and are recognized by the Ontario Ministry of Education and Training as key stakeholders in the education system. Since September 1998, the Deputy Minister of Education and Training has held two meetings with representatives of these associations. Furthermore these associations are represented on the provincial committees dealing with a variety of education issues. Although these associations are not strictly speaking trade unions their members have concluded voluntary agreements and are actively involved in discussions with employers concerning conditions of their employment.

C. The Committee's conclusions

221. The Committee notes that this case concerns allegations of violations of freedom of association principles as a direct consequence of the adoption in December 1997 of the Education Quality Improvement Act (Bill 160) which amended the Education Act governing labour relations in the education sector. The issues raised concern the scope of collective bargaining under Bill 160, the exclusion of principals and vice-principals from statutory collective bargaining machinery, and the impossibility for them to form and join organizations of their own choosing, as well as the lack of adequate consultation with the parties concerned before the adoption of Bill 160.

222. Concerning the scope of collective bargaining in the education sector, the Committee has accepted that a distinction may be drawn between matters that are essentially or primarily concerned with the management and operation of business which can be regarded as outside the scope of collective bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining. In this regard, the Committee has already noted in the case in question the power invested in the Minister of Education and Training to act unilaterally and in particular to issue executive orders relating to holidays and school calendars (section 7(4) of Bill 160). In addition, Bill 160 imposes upper limits for average class sizes and fixes the amount of instruction time for teachers, calculated as a minimum average for each period of five instructional days during the school year (sections 81 and 82 of Bill 160).

223. The Committee has acknowledged that class size, although a subject that may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy and thus could be excluded from the scope of collective bargaining [see 310th Report, Case No. 1928 (Canada/Manitoba), para. 175]. Other matters raised in the present case may also have aspects of broad policy. However, if the Government considers that such subjects should be determined without recourse to collective bargaining, the Committee stresses once again that the Government must ensure that the unions concerned are fully consulted when such broad policy is being formulated. Furthermore, in all cases, free collective bargaining should be allowed to take place on the consequences on conditions of employment of decisions on educational policy. The Committee requests the Government to keep it informed in this regard.

224. As regards school principals and vice-principals, the Committee recalls that the effect of Bill 160 has been to exclude them from the available collective bargaining procedures and from the scope of the Labour Relations Act, 1995, the main labour law. As a result, school boards are under no legal obligation to negotiate with principals and vice-principals concerning their conditions of employment.

225. The Committee takes note of the Government's information to the effect that three provincial associations for principals and vice-principals have been established since 1 January 1998 and that, while these associations are not strictly speaking unions, their members have concluded voluntary agreements and are actively involved in discussions concerning their conditions of employment. In addition, the Committee notes that the case concerning the exclusion of principals and vice-principals from teachers' bargaining units and the impossibility for them to join a teachers' union is still being examined by the Ontario Court of Appeal. The Committee requests the Government to keep it informed of the outcome of the appeal and to provide a copy of the court's decision as soon as it is rendered.

226. The Committee also notes that, since principals and vice-principals are excluded from the scope of the Labour Relations Act, 1995, they are not covered by any provision that would protect them against anti-union discrimination. The Committee is, therefore, bound to recall the importance which it attaches to the need to protect workers from anti-union discrimination and employer interference, and requests the Government to take the necessary measures to ensure that school principals and vice-principals may form and join the organization of their own choosing and that they enjoy effective protection against anti-union discrimination and employer interference. The Committee requests the Government to keep it informed in this regard.

227. Finally, regarding prior consultation which allegedly did not take place before the enactment of Bill 160, the Committee can only reiterate its wish that, when a government seeks to alter the bargaining structure in which it acts actually or indirectly as an employer, such changes should be preceded by adequate consultations whereby all objectives can be discussed by the parties concerned. The Committee, therefore, urges the Government to ensure in future that such consultations are undertaken.

The Committee's recommendations

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

(a) Stressing that the Government should ensure that the unions are fully consulted when general policies affecting them are formulated, and that in all cases free collective bargaining should be allowed to take place on the consequences on conditions of employment of decisions on educational policy, the Committee requests the Government to keep it informed in this regard.

(b) The Committee requests the Government to keep it informed with respect to the case currently before the Ontario Court of Appeal concerning school principals and vice-principals and to provide a copy of the court's decision as soon as it is rendered.

(c) The Committee requests the Government to take the necessary measures to ensure that school principals and vice-principals may form and join the organization of their own choosing and that they enjoy effective protection against anti-union discrimination and employer interference, and requests the Government to keep it informed in this regard.

Case No. 1975

Interim report

Complaint against the Government of Canada (Ontario)
presented by
the Canadian Labour Congress (CLC)

Allegations: Denial of the right to organize

229. In a communication dated 21 July 1998, the Canadian Labour Congress (CLC) presented a complaint concerning violation of freedom of association against the Government of Canada (Ontario). Public Services International (PSI) and the International Confederation of Free Trade Unions (ICFTU) endorsed this complaint in communications dated 23 and 27 July 1998.

230. The Government sent its observations on the case in communications dated 25 January and 19 April 1999.

231. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, 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 complainant's allegations

232. The complaint concerns Bill 22 -- an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997, (hereinafter "Bill 22"), which was adopted on 18 December 1998.

233. The complainant alleges that Bill 22 deprives the workers concerned of fundamental rights to join organizations of their own choosing, bargain collectively or strike, in the context of participation in community participation programmes under the terms of the Ontario Works Act, 1997. The complainant also states that under the terms of Bill 22, the Labour Relations Act, 1995 (LRA), is no longer applicable to workers involved in community participation activities under the Ontario Works Act, 1997. In general terms, the complainant considers that Bill 22 violates some of the most fundamental rights and principles embodied in 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).

234. More specifically, the complainant notes that the adoption of Bill 22 came soon after that of Bill 142 -- an Act to revise the law related to social assistance by enacting the Ontario Works Act and the Ontario Disability Support Program Act, by repealing the Family Benefits Act, the Vocational Rehabilitation Services Act and the General Welfare Assistance Act and by amending several other statutes (hereinafter "Bill 142"). The complainant states that Bill 142 came into force on 1 January 1998 and its main effect is to modify the rules governing welfare payments, to the detriment of welfare recipients. The complainant indeed alleges that Bill 142 is detrimental to the recipients in a number of ways: by forcing some recipients into community participation activities, by providing for more stringent measures to combat fraud including the possibility of using personal and confidential data, and by redefining "disability". The complainant considers that the purpose of Bill 142 is to force recipients to work as a condition of receiving social assistance and thus violates the universal principle of the right to income support.

235. The complainant points out that the purpose of social assistance is to help the least well-off members of the community to meet their basic needs. According to the complainant, the community participation activities which are obligatory under Bill 22 are completely ineffective in achieving their stated goal, owing to the growing number of recipients, the inadequate level of public funding for their reinsertion in employment and the lack of interest of private employers in any jobs that are not -- at least in part -- government-subsidized at some level or other. Forcing these welfare recipients to accept any job on whatever terms will lead to even greater disparities between, on the one hand, a minority of people in well-paid employment and, on the other, an ever-growing number of workers in precarious jobs.

236. The complainant maintains that the Government's adoption of Bill 22, which amends Bill 142 by prohibiting welfare recipients from joining trade unions of their own choosing, bargaining collectively or striking, marks a retrograde step and a return to the conditions that prevailed before the Industrial Revolution, when establishing trade unions was regarded as a criminal activity in Canada and employers were free to deny recognition to trade unions if they so chose.

237. In the complainant's view, implementing Bills 22 and 142 will have the effect of seriously violating the principles of freedom of association. More specifically, with regard to Convention No. 87, the very title of Bill 22 is clearly indicative of the legislators' aims: it unambiguously denies welfare recipients fundamental rights such as the right to form or join trade unions of their own choosing. Similarly, welfare recipients cannot formulate their own programmes of collective action, which violates Article 3 of Convention No. 87. As for Convention No. 98, the complainant, while acknowledging that Canada has not ratified this Convention, emphasizes that Bill 22 constitutes a clear act of discrimination against welfare recipients required to enrol in community participation programmes, by preventing them in this context from joining trade unions of their own choosing, contrary to Article 1 of Convention No. 98.

238. Furthermore, the complainant considers that forcing welfare recipients to renounce their right to join a trade union is detrimental to the trade union movement and might lead to a reduction in overall unionization in the province, thus depriving workers of any means of collectively defending their rights and interests.

239. Lastly, the complainant refers to Bill 31 -- an Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes (hereinafter "Bill 31"). The complainant considers that Bill 31 makes it more difficult to effectively enforce the right to organize, especially in the construction sector: a majority of workers must vote in favour of a trade union in a secret ballot before that union can be certified, thus preventing the Ontario Labour Relations Board from automatically certifying a union in cases where an employer is deemed to have intimidated workers. Bill 31 also allows "project agreements" to be concluded for specific construction projects; these agreements override the terms of provincial agreements and prohibit strikes and lock-outs.

240. Lastly, the complainant considers that Bill 31 will allow certain entities outside the construction sector to give preference in hiring to non-union labour for particular projects.

241. In conclusion, the complainant criticizes the use of repressive laws by the Government of Ontario to prevent certain categories of workers from unionizing. The complainant considers that Bill 22 violates the principles of freedom of association and requests the Committee to put pressure on the authorities to repeal the Bill.

B. The Government's reply

Description of the Ontario Works Program

242. In its reply, the Government explains that the Ontario Works Program, which was announced in June 1996, aims to encourage self-reliance through employment by allowing welfare recipients to develop their skills and work experience through involvement in community participation activities. The Government hopes in this way to help welfare recipients to find the shortest route towards paid employment. The Program gives participants the chance to contribute to their community while themselves benefiting from it in terms of self-esteem and independence, thus breaking the cycle of dependency on government (social) assistance.

243. The Ontario Works Act, 1997, came into force on 1 May 1998 and marks the first major reform of the Ontario social welfare system for 30 years. Social assistance, which will now be paid at municipal level, comprises two main elements, namely, basic financial assistance to those most in need, and employment assistance, comprising a job placement service and training opportunities. The Government considers that this programme will help welfare recipients to find their way back into the world of work in their respective communities, and the community assistance component is a crucial means of achieving this. A community participation placement is any unpaid community service activity sponsored by a non-profit or volunteer community agency under the Ontario Works Program.

244. The Government also states that programme participants must be registered as welfare recipients under the terms of the General Welfare Assistance Act for the entire period of their community placement.

Presentation of Bill 22 -- an Act to prevent
unionization with respect to community
participation

245. The Government recalls that Bill 22 came into force on 18 December 1998. Its purpose was to amend the Ontario Works Act, 1997, by expressly stating that the Labour Relations Act, 1995 (LRA), is not applicable to participation in a community participation programme and that persons enrolled in such a programme cannot join a trade union, bargain collectively on wages and conditions, or strike.

246. The Government emphasizes that Bill 22 has a very narrow and specific focus, in excluding from the scope of the Labour Relations Act, 1995 (LRA), only recipients of social assistance involved in community participation activities under the terms of the Ontario Works Act, 1997. Bill 22 in no way prevents welfare recipients from exercising their right to organize in other situations. There are two reasons for introducing Bill 22, namely, the need to safeguard the integrity of the Government's welfare reforms and the need to protect the opportunities created by the Ontario Works Program with a view to making welfare recipients more self-sufficient.

247. The Government emphasizes that community activity participants are not employees. However, although Bill 22 expressly states that the Labour Relations Act, 1995 (LRA), is not applicable to community participation projects, participants do enjoy a certain level of protection, including an obligation on the part of the participating organization to comply with federal and provincial laws concerning the protection of human rights and occupational health and safety. Furthermore, community placements must not involve work for more than eight hours a day or 44 hours in a week, and the cash benefit paid divided by the monthly hours of work must be not less than the hourly minimum wage. Lastly, the recipient must be granted a certain amount of time off and be provided with adequate accident insurance cover.

Non-violation of Conventions Nos. 87 and 98

248. The Government considers that Bill 22 in no way violates Convention No. 87. Firstly, persons taking part in community participation programmes are not employees and are not covered by the Labour Relation Act, 1995 (LRA), a state of affairs which Bill 22 simply states in explicit terms. In the event that the courts were to reach a different conclusion, participants in these programmes would still be able to form associations, bargain collectively or strike outside the framework of the Labour Relations Act, 1995. Bill 22 in no way prevents them from organizing, bargaining collectively or striking under the terms of the 1995 Act if these activities relate to employment outside their participation in a community participation programme.

249. The Government cites Case No. 1958 concerning Denmark, in which the Committee concluded that there were no violations of Conventions Nos. 87 and 98 in the context of government-subsidized employment programmes in which workers lose the right to collective bargaining on wages if certain conditions are met, namely, that the purpose of the programmes in question is to strengthen active employment measures and develop education and vocational training for young people and adults. Furthermore, the programmes must be of limited duration in order to ensure that the workers concerned are not permanently deprived of their right to bargain collectively. Lastly, the programmes do not provide ordinary work, since their purpose is to combat unemployment by creating subsidized jobs of limited duration, without placing the jobs of current workers in jeopardy.

250. The Government considers that the Ontario Works Program fully satisfies the criteria established by the Freedom of Association Committee, since its purpose is to provide training and educational opportunities and will contribute to the fight against unemployment. It is also of limited duration and cannot be used at any time as a means to replace regular paid workers.

251. In this context, the Government considers that neither of the Conventions (Nos. 87 and 98) has been infringed. The Ontario Works Program allows the welfare system to be used for its true purpose, which is to act as a transitional programme of last resort that provides people on welfare with a stepping-stone back into the workforce.

An Act to promote economic development and create
jobs in the construction industry to further workplace
democracy and to make other amendments to labour
and employment statutes (Bill 31)

252. As regards Bill 31, the Government specifies that this bill aims at promoting job-creating investment through agreements concluded between employers and trade unions for specific construction projects. Bill 31 also removes non-construction employers from construction aspects of the 1995 Labour Relations Act (LRA). However, they remain bound by the other applicable provisions of the LRA. Finally, Bill 31 aims at ensuring that union certification is granted to the agent supported by the majority of the workers concerned.

C. The Committee's conclusions

253. The Committee notes that the case concerns primarily legislative provisions which have been adopted as part of a reform of the welfare system in Ontario and are claimed to violate the principles of freedom of association in that they prohibit the persons concerned from joining a trade union, bargaining collectively on their terms of employment, or striking. However, no mention is made of any specific case in connection with the implementation of the provisions in question.

The disputed legislative framework

254. The Government of Ontario on 18 December 1998 adopted Bill 22 -- an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997. This Bill, as its title suggests, amends the Ontario Works Act, 1997, which was intended to reform welfare in the province.

(a) Ontario Works Act, 1997

255. The explanatory note attached to the text of the Act adopted by the legislature states that the purpose of the Act is to establish a programme that recognizes individual responsibility and promotes self-reliance through employment; provides temporary financial assistance for those most in need while they comply with the obligations to become and stay employed; effectively serves people needing assistance; and is accountable to the taxpayers of Ontario. These observations are reproduced in section 1 of the Act itself which states its purpose.

256. The Ontario Works Act, 1997, provides for two types of assistance, namely: income assistance to cover basic needs and shelter; and employment assistance, defined as assistance given to help a person to become and stay employed (section 4). The latter comprises two elements, namely, various employment measures including job search, job search support measures, referral to basic education and job-specific skills training, and employment placement (section 2); and community participation, which involves participation in community activities that contribute to the betterment of the community (ibid.).

257. Under the terms of section 7 of the Ontario Works Act, 1997, no person is eligible for income assistance unless he or she meets certain conditions relating to participation in employment measures and community participation requirements (employment assistance activities).

258. Under the terms of sections 25 and 29(1) of the Regulation, an individual may be required to participate in one or more employment assistance activities for which he or she is physically capable for a period to be determined by the competent authority. However, no person may be required to participate in community activities for more than 70 hours in a given month. In all cases, the amount of benefit received divided by the number of hours worked must be not less than the minimum hourly wage rate plus 4 per cent (vacation pay).

259. Directive 41.0 specifies the conditions of implementation of the Ontario Works Act. It states that community participation activities must be of benefit both to the community for which the service is performed and to the individual performing the service, who is supposed to gain useful experience with a view to his reinsertion in the labour market. The activities must be unpaid and carried out under the supervision of a representative of the community or of a non-profit (charitable) organization. Private organizations may provide only financial or material assistance, and may not at any time provide, administer or supervise community participation placements. The duration of a community placement must not exceed six months. All participating organizations must comply with federal and provincial human rights and health and safety laws and standards, particularly with regard to maximum daily and weekly working hours, compulsory rest breaks, public holidays, maternity and parental leave.

260. There can be no community placement in an enterprise whose workers are legally exercising their right to strike. Furthermore, people taking part in community participation activities may not at any time replace regular employees of an organization or be required to take part in activities which would violate their conditions of membership of a professional association or trade union.

(b) Bill 22 -- an Act to prevent unionization with
respect to community participation under the
Ontario Works Act, 1997

261. According to section 1 of Bill 22, the Ontario Works Act, 1997 is amended by adding the following section:

(1) The Labour Relations Act, 1995 does not apply with respect to participation in a community participation activity under this Act.

(2) Without limiting the generality of sub-section (1), under the Labour Relations Act, 1995, no person shall do any of the following with respect to his or her participation in a community participation activity:

1. Join a trade union.

2. Have the terms and conditions under which he or she participates determined through collective bargaining.

3. Strike.

Ontario Works Program (employment assistance programme)

262. The Committee notes that, according to the Government, the Ontario Works Program announced in June 1996 and implemented by the Ontario Works Act, 1997, seeks to encourage self-reliance through employment by allowing recipients of social assistance to develop their skills and work experience within the framework of community participation activities. In this way, the Government wishes to help such recipients return to regular paid employment, and marks a reform of the province's welfare system.

263. The Committee notes that the Ontario Works Program is one of a number of active labour market measures adopted by governments around the world in recent decades with the aim of promoting employment and developing vocational education and training. In response to the employment crisis, such programmes have given rise to different types of unpaid work aimed at stimulating the creation or preservation of jobs by subsidizing various forms of employment. In this context, certain measures go as far as obliging individuals in need and without regular work to accept some form of work in exchange for state benefits. Such programmes are also known as "workfare".

264. In the first place, the Committee considers that it does not come within its competence to assess the validity of the Ontario Works Program or to express an opinion as to whether such a programme infringes or restricts the universal right to income support. In the particular case under consideration, the Committee must instead determine whether excluding persons involved in community participation activities from the scope of the Labour Relations Act, 1995 (LRA) -- the fundamental law which provides the framework for industrial relations in the province -- and prohibiting them from joining a trade union, bargaining collectively or striking under the Labour Relations Act, 1995 (LRA), is contrary to the principles of freedom of association.

265. The Government refers to the criteria which were established by the Committee in a similar case [see 312th Report, Case No. 1958 (Denmark), paras. 4-77]. According to the Government, the Ontario Works Program satisfies the criteria established by the Committee, since its purpose is to provide training and education opportunities and combat unemployment. Furthermore, placements under the programme are of limited duration and cannot be used to replace regular paid employees.

266. The Committee emphasizes that the case cited by the Government concerns allegations of government interference in the application of collective agreements by imposing an hourly wage ceiling for workers employed in subsidized jobs. Such workers are not totally excluded from the right to organize but are restricted in their right to bargain collectively by a wage ceiling imposed during a period of subsidized work which cannot in any event last longer than three years. In this case, the Committee noted that these programmes are aimed at combating unemployment through subsidized job offers of limited duration, without placing in jeopardy the posts of current employees, and concluded that such jobs do not constitute ordinary work. The Committee nevertheless emphasized that such programmes must remain limited in duration and must not be used to fill regular jobs with unemployed persons restricted in their right to bargain collectively in respect of wages.

267. However, the approach adopted by the authorities in the present case differs from the one followed in the case cited by the Government. Rather than fixing certain conditions of employment such as wages, section 1 of Bill 22 completely excludes participants in the Ontario Works Program from the terms of the fundamental labour law, namely, the Labour Relations Act, 1995 (LRA). Such persons are not considered as workers under the LRA and therefore cannot now enjoy the rights and safeguards which it provides. In particular, they cannot belong to a recognized union, be represented by a registered trade union or exercise the rights that ensue from this, including the right to bargain collectively and the right to strike. In this respect, the Committee emphasizes that section 1, paragraph 2 of Bill 22 simply states the prohibitions already implied in paragraph 1 by stipulating that persons involved in community participation activities cannot join a union, have the terms of their participation fixed by collective bargaining, or strike under the Labour Relations Act, 1995 (LRA).

268. In the present case and in the case cited by the Government, the Committee notes that the employment provided does not constitute ordinary work but rather, activities which, according to the Government, aim to encourage self-reliance through employment. These activities are of limited duration (six months at most) and cannot replace work done by regular employees. In addition, participants in these schemes cannot take the place of workers legally exercising their right to strike.

269. Furthermore, there is no doubt in the Committee's view that people involved in community participation activities are not true employees of the organization which benefits from their labour and can therefore legitimately be excluded from the scope of collective agreements in force, at least in respect of wages.

270. On the other hand, it is an undeniable fact that persons involved in community participation activities are performing work and providing a service of benefit to the organizations concerned. For this reason, they must enjoy a certain protection in respect of their working and employment conditions. The Committee understands that such protection is provided, since the programmes in question are covered by laws and standards relating to human rights and health and safety, which govern aspects such as hours of work, compulsory rest breaks, public holidays and maternity and parental leave. However, the approach adopted here by the legislative authorities with regard to freedom of association is different and indeed at variance with this: as the full title of Bill 22 clearly indicates (an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997), persons involved in community participation activities do not have the right to join a trade union, bargain collectively on wages and conditions, or strike under the Labour Relations Act, 1995 (LRA). The Committee emphasizes the universality of the principle of freedom of association and recalls that all workers, without distinction whatsoever, must have the right to organize, in accordance with Convention No. 87, and that non-discrimination must be regarded as the general principle, the only exception being permitted under Article 9 of the Convention, which allows national authorities to determine the extent to which the safeguards provided by the Convention are to be applied to the armed forces and the police. Since persons working under community participation programmes are workers within the meaning of Convention No. 87, they must have the right to organize, given that they undeniably have collective interests which must be promoted and defended. The Committee therefore requests the Government to take the necessary measures to amend its legislation relating to community participation activities and to extend to persons involved in such activities the right to organize, in accordance with the principles of freedom of association in general and the provisions of Convention No. 87 in particular. The Committee requests the Government to keep it informed in this regard.

271. In any event, the Committee regrets that the Government, in the very title of Bill 22, has indicated its intention to prevent unionization in community participation programmes.

(c) Bill 31 -- an Act to promote economic development
and create jobs in the construction industry, to further
workplace democracy and to make other amendments to
labour and employment statutes

272. Finally, as regards Bill 31 -- an Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes (hereinafter "Bill 31"), the Committee takes note of the complainant's allegations and the information provided by the Government. The Committee observes that Bill 31 modified the Labour Relations Act (LRA) as regards specific construction projects and primarily aims at promoting economic development. At this stage however, the Committee is unable to express its view on this aspect of the case in light of the lack of precision in the complainant's allegations as well as the brief reply of the Government. The Committee would therefore request the complainant to provide additional information in respect of Bill 31; the Committee also requests the Government to furnish clarification with regard to the impact of Bill 31 on previously concluded agreements and on the prohibition on the right to strike and lock out.

273. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

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

(a) Emphasizing the universality of the principle of freedom of association and recalling that all workers, without distinction whatsoever, must have the right to organize, the Committee requests the Government to take the necessary measures to amend its legislation relating to community participation activities and to extend to persons involved in such activities the right to organize, in accordance with the principles of freedom of association in general and the provisions of Convention No. 87 in particular. The Committee requests the Government to keep it informed in this regard.

(b) The Committee requests the complainant to provide additional information in respect of Bill 31; the Committee also requests the Government to provide further clarification with regard to the impact of Bill 31 on previously concluded agreements and on the prohibition on the right to strike and lock out.

(c) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1985

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

Complaint against the Government of Canada
presented by
the Canadian Labour Congress (CLC)

Allegations: Government interference in collective bargaining
(postal sector)

275. In a communication dated 25 September 1998, the Canadian Labour Congress (CLC) presented a complaint concerning violations of freedom of association against the Government of Canada. Communications International endorsed this complaint in a communication dated 29 September 1998.

276. The Government sent its observations on the case in communications dated 22 January and 15 April 1999.

277. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, 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 complainant's allegations

278. The complainant maintains that the Government has seriously contravened the principles of freedom of association by adopting, on 3 December 1997, Bill C-24 (the Postal Services Continuation Act, 1997) to terminate a lawful strike by Canadian postal workers. The events leading to the enactment of Bill C-24 are outlined below.

279. On 31 January 1995, the Canada Post Corporation and the Canadian Union of Postal Workers concluded a collective agreement which was due to expire on 31 July 1997. A notice to bargain with a view to renewing the agreement was served, following which the Canada Post Corporation and the Canadian Union of Postal Workers held a number of meetings for the purpose of negotiation.

280. The complainant claims that throughout the period April-November 1997, and despite the talks that were held, the existence of a strike mandate, the intervention of conciliation officers and the establishment of a conciliation board, the Canada Post Corporation made no real effort to conclude a collective agreement; indeed, during this period, the Minister on several occasions said that a special back-to-work law would be enacted if the postal workers went on strike.

281. The complainant is of the opinion that, after November 1997, the Canada Post Corporation had no intention of negotiating in good faith, and alleges that the proposals submitted at that time to the postal workers constituted a retrograde step in relation to the original demands and indeed in relation to the employer's own initial offers. The complainant maintains that the employer deliberately created a situation of deadlock in the negotiating process in order to force the union to resort to the ultimate means of applying pressure, namely, strike action. It was in this context, with no other option available, that the union went on strike on 19 November 1997. Shortly after this the Government passed Bill C-24, forcing the workers involved to return to work.

282. The complainant alleges that Bill C-24 deprives the union not only of its right to strike but also of its ability to negotiate freely on matters concerning the conditions of employment of its members.

283. More precisely, the complainant maintains that Bill C-24 restricts the right of workers to organize in the defence of their interests and negates any benefits of joining a trade union organization, whose efforts are systematically hampered by the new legislation. Union membership now confers no real benefits, given that any collective agreement that may be concluded can be modified unilaterally by the authorities to accommodate the wishes of the Government or the employer.

284. Furthermore, Bill C-24 violates the principle of free collective bargaining by: (i) extending the collective agreement which expired on 31 July 1997 for a further three years; (ii) imposing pay awards through legislation for the same period; (iii) requiring the mediator-arbitrator to take account in his decisions of the interests of the Canada Post Corporation, namely, its viability and financial stability; (iv) unduly restricting the scope of collective bargaining; (v) prohibiting strikes; and (vi) setting fines that are ten times higher than those provided for in the Canadian Labour Code for similar cases.

285. Lastly, the complainant maintains that Bill C-24 violates the right to strike, in that the prohibition of strike action, combined with the extension of the collective agreement, the unilateral imposition of conditions of employment and the absence of genuinely impartial and independent arbitration machinery (even though the postal service is not an essential service in the strict sense of the term), deprives the workers concerned of effective means for defending their economic and social interests.

286. The complainant recalls that Bill C-24 is only one of many legislative measures adopted by the Government which impede and are seriously detrimental to the process of collective bargaining in the country. In this regard, the complainant refers to the 1987 and 1991 Postal Services Continuation Acts. On a number of occasions in the past, the Canadian Government has shown little interest in respecting the right of workers to bargain collectively and freely on their terms and conditions of employment. As regards Bill C-24, the complainant maintains that the Government has wilfully and deliberately sacrificed collective bargaining in the interests of the stability, efficiency and productivity of the Canada Post Corporation. Indeed, the Government in recent years has demonstrated its intention to institutionalize recourse to legislation as a means of unilaterally fixing conditions of employment, not only for public servants but for all workers employed in organizations under federal jurisdiction. Despite numerous complaints and recommendations made by the Freedom of Association Committee and the Committee of Experts on the Application of Conventions and Recommendations, the Government has still not adopted the necessary measures. Taking into account these repeated violations, the complainant requests that a direct contacts mission visit the country to meet representatives of the trade unions, employers and Government with a view to carrying out an in-depth assessment of the situation and formulating suitable recommendations.

B. The Government's reply

Profile of the Canada Post Corporation

287. The Government explains that the Canada Post Corporation was set up in 1981 by an Act of Parliament (the Canada Post Corporation Act) and that its mission is to establish and operate a postal service for all Canadians.

288. The Government states further that the Canada Post Corporation handles more than 37 million letters and parcels daily, and in 1997-98, 30 million Canadians and more than 900,000 companies and public institutions were served by the Corporation.

289. The Canada Post Corporation has more than 63,000 employees working at 22 major mail-processing centres and other facilities and is Canada's fifth largest employer.

290. The Government considers that the work of the Corporation is of importance to all Canadians. A large proportion of the total volume of letters and parcels handled by the Corporation is private mail; any disruption of the service can entail serious consequences for people who depend on government benefits which are, as a rule, sent through the postal system. As for commercial enterprises, the postal service plays a vital role with regard to sending out invoices and payments. Strikes or other disruptions to the postal service in Canada can lead to serious cash-flow problems for these companies.

291. Bearing this information in mind, the Government indicates that the strike which paralysed the Canada Post Corporation for almost two weeks in November and December 1997 entailed serious consequences for companies and individuals alike. According to some estimates, Canadian companies lost more than $20 million for each day of the strike. Charities, most of which rely on contributions paid during these months, are said to have lost more than $10 million per day. The strike resulted in lay-offs for 10,000 workers in various companies that were directly affected. In addition, some people who are dependent on state benefits found themselves -- despite contingency measures -- without adequate funds to cover basic necessities and rent. Throughout the period of the dispute, conciliators and mediators were available to the parties concerned to help them to reach an acceptable settlement. The Government intervened only once it became evident that no such settlement was in prospect.

Legislative framework for collective talks
under the Canadian Labour Code

292. Only 10 per cent of Canadian workers are covered by the Canadian Labour Code and related laws. These are workers employed in infrastructures and industries of considerable importance to the Canadian economy, including international and inter-provincial land and sea transport, air transport and airports, telecommunications, banks, ports, postal services, and other industries declared to be of general advantage to Canada. In June 1998, Part I of the Canadian Labour Code was amended to replace the Canada Labour Relations Board with a representational body, the Canada Industrial Relations Board. These amendments came into force on 1 January 1999. As regards the rights of the workers covered by this legislation to organize and bargain collectively, the Government recalls its commitment to respect them and refers in this regard to the Preamble to Part I of the Canadian Labour Code, which states:

Whereas there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;

And Whereas Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour management relations;

And Whereas the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard;

And Whereas the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all;

Now Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: [...]

293. As regards collective bargaining as such, Part I of the Canadian Labour Code grants exclusive bargaining rights to bargaining agents representing employees in a given bargaining unit. The Canada Industrial Relations Board is the body responsible for providing the necessary certification.

294. In order to be certified to carry out collective bargaining, a trade union must establish its status as a union. For this purpose, the Canada Industrial Relations Board requires proof from the union that it is an organization established for the purpose of collective bargaining and that it has adopted appropriate statutes and by-laws. The organization must be free from employer interference or domination. The union once certified must show that it represents the majority of employees in a given bargaining unit.

295. The Canada Industrial Relations Board has exclusive jurisdiction to determine the unit appropriate for collective bargaining. To do this, it takes into consideration the nature of the industry concerned, the organization of the company and the skills and occupational groups of the workers. In practice, the bargaining unit may cover one, several or all of an employer's establishments, and the units may cover all employees or be divided to cover particular categories. Although the nature of the industry concerned will influence the determination of the appropriate bargaining unit, the Canada Industrial Relations Board tends increasingly to avoid fragmentation of bargaining units. Once certification has been granted, the bargaining agent and employer are under an obligation to meet and bargain in good faith and to make every reasonable effort to conclude a collective agreement. Such agreements are concluded for a minimum period of one year, during which time strikes and lockouts are prohibited. However, collective agreements must contain a provision to the effect that all disputes on their interpretation and implementation must be settled by arbitration or in some other way. If the parties fail to agree on the choice of arbitrator, one can be appointed at their request by the Minister of Labour.

296. Notice to bargain may be given by either party three months before expiry of the collective agreement. If talks do not lead to an agreement, one of the parties can notify the Minister of Labour in order to take advantage of the provisions of the Labour Code relating to the appointment of a conciliation officer or conciliation commissioner (an independent official), or in order to acquire the right to strike or lock out. The Minister can then set the conciliation procedures in motion, in which case strikes or lockouts are prohibited until the settlement procedures have been exhausted.

297. Lastly, the Canadian Labour Code also requires that the bargaining agent represent all the members of a given bargaining unit fairly and without discrimination, and provides for penalties in the event of any violations of its provisions.

298. The Government concludes its presentation of the legislative framework by stressing that the Canadian Labour Code aims to create a stable environment for collective bargaining and to encourage parties to use collective bargaining as a means of settling their differences. In practice, the Government considers that collective bargaining in private companies subject to federal jurisdiction works well, given that more than 95 per cent of agreements are concluded without any work stoppage. Between 500 and 600 such agreements come up for negotiation each year.

History of talks between the Canada Post Corporation
and the Canadian Union of Postal Workers

299. The Government sets out the history of collective bargaining since the Canadian Union of Postal Workers concluded its first collective agreement. Between 1975 and 1997, collective talks were held during the periods 1975, 1977-78, 1979-80, 1981-82, 1984-85, 1986-87, 1989-1991 and 1994-95. Strikes were carried out in 1975, 1978, 1981, 1987 and 1991. The Government ended the strikes in 1978, 1987 and 1991 by means of "back-to-work" laws. In the other cases, the parties involved eventually reached an agreement without the Government taking legislative action or without any work stoppage (1979-80, 1984-85 and 1994-95).

300. The Government recalls the reasons for the establishment of the Canada Post Corporation in 1981. During the 1970s, Canadians became increasingly frustrated at the postal system, as disputes became more frequent and disrupted services. A number of inquiries were carried out in an attempt to solve the problem, and it was following these inquiries that the Canada Post Corporation was set up by law with a mandate to "establish and operate a postal service for the collection, transmission and delivery of messages, information, funds and goods both within Canada and between Canada and places outside Canada".

301. Section 5 of the Canada Post Corporation Act states that the Corporation must have regard to "the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada and that is similar with respect to communities of the same size". The Board of Directors set up under the Act interpreted these fundamental objectives to mean improved services, creating a better climate for human relations within the organization, and the achievement of financial self-sufficiency by the end of the Corporation's fifth year of operation.

302. In November 1995, the minister responsible for the Canada Post Corporation ordered a comprehensive and independent review of the Corporation's mandate. The report of that review, which was released in October 1996, concludes that the Canada Post Corporation is operating under constraints that are no longer in tune with the realities of today's workplace, particularly with regard to flexibility, job security and pay for time not worked. The financial consequences of these problems are serious enough to pose a threat to the Corporation's viability. The report recommends that the Corporation reduce costs associated with the application of collective agreements by bringing them into line with the realities of the contemporary Canadian workplace, and that this should be done through bargaining in good faith. Should talks end in deadlock, the Government must take the necessary measures to safeguard the public interest and ensure the long-term financial stability of the Canada Post Corporation.

303. With regard specifically to the 1997 collective talks in the postal sector, the Government explains that direct negotiations between the parties began in the summer of 1997. Two conciliation officers were appointed by the two parties and meetings were held in July, August and September 1997. However, from the beginning of September onwards, the union, which said it was not prepared to continue with the conciliation process, asked the conciliation officers to submit their report. The union subsequently rejected the global offer made by the Canada Post Corporation on 18 September. Some weeks later, the Minister of Labour appointed a conciliation commissioner who, after numerous meetings with both sides, indicated on 30 October that the parties had been unable to reach a settlement. He suggested that more rapid progress would be made if the parties were under the pressure of a possible strike or lockout. At the same time, the conciliation commissioner recommended that the Minister of Labour should urge the parties to "negotiate their dispute promptly, diligently and in good faith" and that the services of the Federal Mediation and Conciliation Service should be made available to them at any time at their request. The report was published on 10 November, and on 18 November the parties obtained the right to conduct a strike or lockout in accordance with the relevant provisions of the Canadian Labour Code.

304. The strike by the Canadian Union of Postal Workers began at 5 p.m. on the following day. However, the Government indicates that the parties continued to negotiate throughout November. Following talks with the parties in which he was assured that they still wanted to achieve a negotiated settlement, the Minister appointed a senior civil servant as mediator on 24 November. Although the mediator met with the parties between 24 and 28 November, they were unfortunately unable to reach a settlement. Under these circumstances, the Minister of Labour felt obliged to introduce a "back-to-work" bill at the beginning of December. Bill C-24 (the Postal Services Continuation Act, 1997) was enacted on 2 December 1997. The postal workers returned to work on 4 December.

305. The Government stresses that under Bill C-24, a mediator-arbitrator was appointed in January 1998 with a view to settling all the matters in dispute. He subsequently held regular meetings with the parties involved. The union for its part simultaneously initiated various judicial proceedings. The Quebec Superior Court, in a ruling handed down on 24 March 1998, rejected the union's application alleging that Bill C-24 was contrary to the Canadian Charter of Human Rights and Freedoms.

306. The Government explains that Bill C-24 extends the collective agreement until such time as a new one comes into force. The collective agreement is also amended by provisions for wage increases of 1.5 per cent from 1 February 1998, a further 1.75 per cent from 1 February 1999 and a further 1.9 per cent from 1 February 2000.

307. In its concluding remarks, the Government recalls that the Canadian Labour Code recognizes the rights to strike and lock out. It also stresses that it favours collective bargaining and intervenes only as a last resort and that, since 1950, it has had recourse to special "back-to-work" legislation on only 25 occasions and does so only in cases where a stoppage would have serious consequences for Canadians.

308. In 1997, the Government was obliged to enact back-to-work legislation in the postal services to protect the public interest and settle the dispute, the parties having failed to agree despite the intervention of conciliation officers, conciliation commissioners and mediators. This government initiative became necessary because the stoppage of postal services was potentially very damaging to individuals and companies which had no connection with the parties to the dispute. Several Canadian companies which depend on the postal service suffered considerable losses which could, in already difficult circumstances, threaten their economic viability. Some individuals found themselves without any money to cover basic necessities.

309. Furthermore, the Government considers that, since Bill C-24 contains provisions on the settlement of disputes, it has created a new opportunity for the parties concerned to reach a settlement through mediation or arbitration. In this regard, the Bill sets out the guiding principles which mediator-arbitrators must follow; these principles are intended to ensure that the mediator-arbitrator keeps in mind the financial constraints on the Canada Post Corporation, as well as its statutory obligation to provide a quality service.

310. Lastly, the Government notes that the wage increases provided for in Bill C-24 are larger than those that have been negotiated for the public service in general, and also states that the fines provided for in the event of non-compliance were deliberately set at a high level in order to be a certain deterrent.

311. In conclusion, the Government says that it is convinced that the parties to this dispute were not able to reach a settlement, even after all the available mechanisms had been exhausted. Back-to-work laws are passed only in the case of the major infrastructure services, any interruption of which would have serious repercussions for all Canadians. The Government finally reaffirms its belief in collective bargaining.

C. The Committee's conclusions

312. In this case, the complainant alleges that the Government infringed the principles of freedom of association by adopting Bill C-24 (the Postal Services Continuation Act, 1997), which forced postal workers to return to work after a lawful strike lasting 12 days. The Government maintains that it adopted Bill C-24 in the public interest, after it had made available to the parties involved in a public-interest sector all the dispute settlement mechanisms available under legislation, without any success.

313. The Committee takes note of the Government's very detailed reply; it also notes that the Government bases its arguments on more or less the same claims which it had put forward on the occasion of the examination of a complaint following the enactment in 1987 of the Postal Services Continuation Act, 1987, which forced Canadian postal workers back to work after a seven-day strike [see Case No. 1451, 268th Report, paras. 46-104].

314. The Committee also notes that the complainant and the Government appear to agree in general terms on the nature of the events summarized here which led to the adoption of Bill C-24.

315. In terms of legislation, and with regard to companies and institutions under federal jurisdiction, collective bargaining and dispute settlement procedures are provided under Part I of the Canadian Labour Code, Divisions IV and V. Within the three months before the expiry of a collective agreement, either of the parties to it can, by notice, require the other party to commence collective bargaining for the purpose of renewing or revising the collective agreement (Canadian Labour Code, section 49). After a period of collective bargaining in good faith (ibid., section 50), either party may inform the Minister of their failure to reach any agreement (ibid., section 71). Under the law, the Minister can then choose from a number of options: appointment of a conciliation officer, appointment of a conciliation commissioner, or establishment of a conciliation board (ibid., section 72(1)(a), (b) and (c)). The Minister can also notify the parties of his or her intention to take no such action (ibid., section 72(1)(d)). In cases where the parties have used these dispute settlement mechanisms and the Minister has indicated his or her intention not to take any of the actions referred to above, the parties acquire the right to carry out a strike or lockout once a certain period (seven days) has elapsed. Until this stage is reached, "No employer shall declare or cause a lockout and no trade union shall declare or authorize a strike" (ibid., section 89(1)). The Minister may have recourse to conciliation at any time if he or she considers that such action may help the parties to conclude a collective agreement (ibid., section 72(2)).

316. In the present case, the parties began talks in early June 1997. Subsequently, two conciliation officers were appointed and meetings were held during the summer of 1997. At the beginning of September, the Canadian Union of Postal Workers indicated that it was no longer prepared to use the services of the conciliation officers. In this context, in accordance with the Canadian Labour Code, the Minister of Labour appointed an independent conciliation commissioner who, in the report which he submitted on 30 October 1997, conceded that his efforts to bring the parties together had failed. Nevertheless, the parties continued to negotiate. The parties acquired the right to strike or lock out on 18 November and the union called a lawful strike the following day. The Minister of Labour appointed a senior official as mediator on 24 November; meetings were held in his presence until 28 November, without any agreement being reached by the parties. The Government considered that talks were leading nowhere and at the beginning of December 1997, 12 days after the strike began, introduced Bill C-24 before Parliament which passed it, forcing the postal workers to return to work on 4 December.

317. The Committee notes that Bill C-24 not only ends the lawful strike declared by the union, but also extends the collective agreement which expired in June 1997 until such time as a new collective agreement is concluded (section 6) or for a maximum period of three years and requires the Minister to appoint a mediator-arbitrator and refer to him or her all matters that remain in dispute between the parties (ibid., section 8). On 1 January 1999, more meetings were held between the mediator-arbitrator and the parties on the basis of these provisions. Bill C-24 states expressly that the mediator-arbitrator "shall be guided by the need for terms and conditions of employment that are consistent with the Canada Post Corporation Act and the viability and financial stability of Canada Post, taking into account (a) that the Canada Post Corporation must, without undue increases in postal rates, (i) operate efficiently, (ii) improve productivity, and (iii) meet acceptable standards of service; and (b) the importance of good labour-management relations between the Canada Post Corporation and the union" (ibid., section 9).

318. With regard to facts that are not disputed, the Committee notes that, by the time the Canadian legislature passed Bill C-24 forcing the postal workers back to work, the parties had been holding talks for six months and that, despite having used the many dispute settlement procedures available under the law, they had failed to reach agreement.

319. The Committee also notes that one of the main issues in the present complaint concerns the fact that the postal workers were engaged in a lawful strike and that the Government, through Bill C-24, had ordered them to return to work 12 days after the strike began.

320. In this context, the Committee is bound to recall that the right to strike is one of the legitimate and essential means of defending workers' economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 473-477]. The Committee must once again draw the Government's attention to the principle of freedom of association according to which the right to strike may be restricted or prohibited only in a limited number of cases, namely: in the case of public servants exercising authority in the name of the State; 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. Furthermore, the Committee recalls that a general prohibition of strikes can only be justified in the event of an acute national emergency, and then only for a limited period of time [see Digest, op. cit., paras. 526-527].

321. In addition, the Committee has been asked on several occasions to examine complaints concerning the compulsory continuation of postal services to the detriment of the legitimate exercise of the right to strike. On these occasions, the Committee concluded that it was difficult to concede that such stoppages were likely to result in consequences characteristic of essential services in the strict sense of the term [see Case No. 1692, 291st Report, para. 224; and Case No. 1451 (Canada), 268th Report, para. 98].

322. Nevertheless, the Committee notes that a prolonged interruption in postal services can affect third parties who have no connection with the dispute. The Committee is aware of the fact that a strike affecting postal services, especially at a crucial time of year, may have serious repercussions for companies, even with the availability of alternative services such as private mail services, facsimile or electronic mail. In this regard, the Committee has already noted that direct mail undertakings, which rely heavily or exclusively on the postal system, are particularly badly affected [see Case No. 1451 (Canada), 268th Report, para. 98]. The Committee is also especially sensitive to the fact that a postal strike directly affects individuals; even if they, too, have access to alternative services, the Committee cannot ignore that it is often people in a socially precarious situation who suffer directly from interruptions in services of this kind, since they are thereby deprived of the minimum level of income needed to cover basic necessities and housing. In such cases, the worst hit are often recipients of unemployment benefits or social assistance and elderly people who depend on their pension payments.

323. Whatever the case may be, and however unfortunate such consequences are, they do not justify a restriction of the fundamental rights guaranteed under Conventions Nos. 87 and 98, unless they become so serious as to endanger the life, safety or health of part or all of the population. In the opinion of the Committee, this is not the case here, especially in view of the claim, which has not been refuted, that even by the Government's own admission, contingency measures had been taken. The Committee therefore requests the Government to make every effort in the future to avoid having recourse to back-to-work legislation in the postal sector.

324. On the other hand, the Committee has previously indicated that the maintenance of a minimum service can be foreseen in the postal services [Digest, op. cit., para. 568]. The Committee stresses, however, that the maintenance of minimum services in the event of a strike should only apply: (1) in services whose interruption would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; or (3) in public services of fundamental importance [Digest, op. cit., para. 556]. In such cases, trade union organizations should be able to participate in defining the minimum service, along with employers and the public authorities [Digest, op. cit., para. 557]. The Committee of Experts on the Application of Conventions and Recommendation shares this view [General Survey of 1994 on freedom of association and collective bargaining, para. 161]. The Committee suggests that the Government should examine the possibility of introducing, in agreement with the trade unions concerned, measures in order to avoid recourse to back-to-work laws, and requests the Government to keep it informed in this respect.

325. Finally, recalling that the Committee already suggested that the Government consider having recourse to the assistance of the International Labour Office, and noting the complainant's request that a direct contacts mission visit the country, the Committee requests the Government to re-examine these proposals in order to facilitate finding solutions to the difficulties identified, and to give an answer in this regard.

The Committee's recommendations

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

(a) Recalling that the postal service is not an essential service in the strict sense of the term, the Committee urges the Government to make every effort in the future to avoid having recourse to back-to-work legislation in this sector.

(b) Considering that the postal service can be regarded as a public service in which a minimum service can be foreseen and emphasizing that in such cases, trade union organizations should be able to participate in the definition of the minimum service, along with employers and the public authorities, the Committee suggests that the Government should examine the possibility of introducing, in agreement with the trade union concerned, measures in order to avoid recourse to back-to-work laws, and requests the Government to keep it informed in this respect.

(c) Recalling that the Committee already suggested that the Government consider having recourse to the assistance of the Office and noting the complainant's request that a direct contacts mission visit the country, the Committee requests the Government to re-examine these proposals in order to facilitate finding solutions to the difficulties identified, and to give an answer in this regard.

Case No. 2002

Definitive report

Complaint against the Government of Chile
presented by
the Single Central Organization of
Chilean Workers (CUT)

Allegations: Refusal to allow a trade union leader
to attend a ceremony

327. The complaint is contained in a communication dated 17 January 1999 from the Single Central Organization of Chilean Workers (CUT). The Government replied in its communication of 22 February 1999.

328. Chile 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

329. In its communication of 17 January 1999, the Single Central Organization of Chilean Workers (CUT) explains that it had for a long time been calling for the ratification by Chile of ILO Conventions Nos. 87 and 98, which was finally achieved due mainly to the CUT. The CUT adds that on 5 January 1999, the President of the Republic formally signed the instrument of ratification of Conventions Nos. 87 and 98 and others, which had been approved by the National Congress, in a formal ceremony. A number of trade union officials had been invited, including the National President of the CUT, Mr. Etiel Moraga Contreras, who was also invited in his capacity as President of Industrial Trade Union No. 8 of the company Codelco-Chile (Sewel y Mina, División El Teniente). However, when Mr. Etiel Moraga Contreras attempted to enter the Presidential Residence where the ceremony was due to take place, he was prevented from entering and left the premises together with other trade union officials who left as a gesture of solidarity in the face of the affront. The discrimination and offensive treatment suffered by the CUT President was an insult not only to him as an individual, which would in itself be a grave offence, but was also an affront to the trade union which he represented and to all Chilean workers affiliated to the CUT.

330. The CUT adds that no union leader was invited to represent the CUT at the formal signing ceremony in question. It would appear that, as far as the Government is concerned, the CUT does not exist, or has been removed from its list of social organizations.

331. According to the CUT, this incident did not come about by chance or as a result of a regrettable oversight, as has been claimed by certain authorities; on the contrary, it reflects the treatment meted out by the Government in recent times to the CUT and other organizations, predominantly in the public sector. The CUT states that an executive committee and national president were elected in democratic and autonomous elections, and considers that the Government, in refusing to acknowledge the representative nature of the union, showed a deplorable lack of consistency and tolerance. According to the CUT, the organization's national President, as its lawful representative, is entitled to deal with public or private bodies in all matters relating to the objectives set out in its statutes. The CUT considers that the Government has restricted the right laid down in Article 3, paragraph 1, of ILO Convention No. 87 and has infringed the union's right of representation under the terms of the Labour Code. Lastly, the CUT, while acknowledging that the Labour Directorate has already issued the appropriate certification, requests the Government, through the authority invested in the President of the Republic, to formally recognize the union's executive committee and national President.

B. The Government's reply

332. In its communication of 22 February 1999, the Government states that on 5 January 1999, the President of the Republic Mr. Eduardo Frei Ruiz-Tagle, at a ceremony in the Presidential Residence, signed the instrument of ratification of the fundamental Conventions Nos. 87, 98, 105 and 138, which had been approved by the National Congress on 10 November 1998. The signing ceremony took place in the Montt-Varas room in the presence of some 200 invited guests, including members of the Labour and Social Security Committees of the Chamber of Deputies and the Senate, Government representatives, industrialists, trade union officials, heads of NGOs, trade union and trade associations, labour advocates, representatives of the Industrial Relations Association and of the Chilean Society for Labour Law, labour representatives, academics and university professors of labour law, and representatives of international organizations.

333. The Government adds that in December 1998, the Office of the President sent out a large number of personal invitations for the signing ceremony. For that purpose, the Ministry of Labour and Social Security provided a list of people to be invited. The list included the following: (a) 18 Members of Parliament; (b) 46 Government representatives; (c) 17 senior officials of the Confederation of Production and Trade (employers); (d) 31 leaders of organizations affiliated to the Confederation of Production and Trade; (e) five directors of small enterprises representing CONUPIA; (f) 16 former leaders of the CUT; (g) 74 current leaders of the CUT; (h) 69 leaders of trade union federations and confederations in the Santiago Metropolitan Area and the Valparaíso Region; (i) 22 leaders of the National Association of Treasury Employees (public sector); (j) 166 leaders of workers' associations; (k) 83 trade union presidents; (l) 43 representatives of NGOs, union and trade associations; (m) 25 labour advocates, representatives of the Industrial Relations Association and the Chilean Society for Labour Law; (n) 37 academics, university professors and representatives of international organizations. The final guest list contained 652 people.

334. The Government explains further that Mr. Etiel Moraga Contreras was included in the list in his dual capacity as President of the CUT and head of a trade union, and that in view of the large number of invitations issued and the limited capacity of the Montt-Varas room in the Palace where the ceremony was to be held, the palace guards refused to allow anyone else to enter once the room was full. For that reason, a number of people apart from Mr. Etiel Moraga Contreras were unable to enter. They included Mr. William Thayer Arteaga (a former Minister of Labour and Social Security, former Rector of the Universidad Austral de Valdivia, former Senator and President of the Senate Labour Affairs Committee); Mr. Eduardo Loyola Osorio (formerly Under-Secretary of State for Labour, labour advocate, formerly Chilean representative on the Governing Body of the ILO, currently Vice-President of Human Resources, Codelco-Chile); Ms. Gladys Laedger (Head of Office for the Director of Labour Affairs), and others.

335. The Government concludes by stating that there has never been any discrimination against Mr. Etiel Moraga Contreras, nor was he prohibited from entering the Government Palace.

C. The Committee's conclusions

336. The Committee notes that the complainant (the CUT) is critical of the fact that its President was prevented from attending an official ceremony for the signing by the Government of Chile of the instrument of ratification of a number of ILO Conventions (Conventions Nos. 87, 98, 105 and 138) which had been approved by the National Congress. The complainant also claims that no senior official was invited to represent the CUT at the ceremony, and that the organizations' representativeness and that of its new executive committee, as well as its right of representation, have thereby been called into question.

337. The Committee takes note of the Government's statements in which it (1) denies that there has been any discrimination against the CUT President or other persons; (2) states that 652 people were invited to the ceremony, including 16 former leaders and 74 current leaders of the CUT; (3) states that the Montt-Varas room where the ceremony took place and where some 200 invited guests had gathered was full and for that reason the guards did not allow anyone else to enter; and (4) explains that other guests apart from the CUT President remained outside.

338. The Committee concludes that the fact that the President of the CUT and many other people were unable to attend the ceremony of signing the instrument of ratification of a number of ILO Conventions (including Conventions Nos. 87 and 98) was the result of problems of organization, specifically, of the fact that the room used for the ceremony was not big enough to accommodate all the invited guests. The Committee particularly regrets the fact that the President of the CUT, an organization which for many years had called for the ratification of these Conventions, was unable to attend the ceremony as a result of the problems referred to, and trusts that it will be possible to prevent such problems arising in future. However, in the light of all the evidence available to it, and taking into account the fact that many other people were unable to enter the room where the ceremony was held, the Committee cannot confirm that there has been discrimination against the President of the CUT.

339. As regards the allegation that the incident in question reflects the general treatment which the CUT has suffered in recent times, the Committee notes that the CUT makes no reference to any specific actions or attitudes directed against it. Under these circumstances, the Committee will not pursue its examination of the case.

The Committee's recommendation

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

Case No. 1930

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

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

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

341. The Committee examined this case in its meeting in May-June 1998 [see 310th Report, paras. 271-367, approved by the Governing Body at its 272nd Session (May-June 1998)] during which it made interim conclusions.

342. The Government furnished its further observations in a communication dated 5 March 1999.

343. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

344. In May-June 1998, the Committee had examined allegations concerning violations of freedom of association in national legislation, the persistent recourse to arbitrary, and sometimes secret, detention for trade unionists, the repeated use of "re-education through labour" sentences against workers for carrying out legitimate trade union activities, the torture of and denial of necessary medical treatment to detained unionists, the harassment and, in some cases, detention of unionists' family members and the dismissal of workers for legitimate trade union activity. In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations in May-June 1998:

(a) Recalling that the Committee has already concluded that several provisions of the Trade Union Act are contrary to the fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes, the Committee requests the Government to take the necessary steps to ensure that sections 4, 5, 8, 9, 11 and 13 of the Act are amended accordingly.

(b) The Committee requests the Government to take the necessary steps to amend sections 34 and 46 of the Labour Law so as to ensure the autonomy of the parties in collective bargaining and to ensure that any requirement for prior authorization of collective agreements be limited to procedural flaws or the violation of minimum labour standards established in the legislation.

(c) The Committee requests the Government to take the necessary steps to amend sections 79 to 83 of the Labour Law as indicated in the conclusions so as to ensure that workers and their organizations are able to exercise the right to strike in defence of their social and economic interests and to ensure respect for this right in practice.

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

(e) The Committee requests the Government to take the necessary measures immediately to ensure the release of all those trade unionists who were the subject of earlier complaints before the Committee and who, according to the present complaint, have not yet been released (Annex I), including the immediate release of Tang Yuanjuan and of Wang Miaogen from a psychiatric institution. It further requests the Government to set up an independent investigation into the alleged acts of ill-treatment carried out in detention against Tang Yuanjuan, Leng Wanbao and Li Wei and to keep the Committee informed of the outcome of the investigation and the measures taken for the release of the detainees.

(f) The Committee requests the Government to take the necessary measures to ensure the immediate release of those individuals arrested in 1989 for having organized workers' demonstrations and strikes (see Annex II).

(g) The Committee requests the Government to provide specific and detailed information on the charges brought against the members of the Free Labour Union of China cited in Annex III, including copies of any relevant court judgements.

(h) Noting with deep regret that the Government does not reply to the very specific allegations made in respect of Zhou Guoqiang and his wife, Wang Hui, the Committee requests the Government to provide detailed information in this respect.

(i) Emphasizing the importance that should be attached to the principle laid down in the International Covenant on Civil and Political Rights according to which all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person, the Committee insists that the Government take the necessary measures to ensure Liu Nianchun's immediate release and to provide him with the necessary medical treatment. It further calls upon the Government to establish an independent investigation into the serious allegations of torture and ill-treatment raised in respect of Liu Nianchun in order to determine and punish those responsible. The Government is requested to indicate the measures taken in this respect and the outcome of the investigation.

(j) The Government is further requested to take the necessary measures to ensure the release of the two other members of the League for the Protection of the Rights of Working People, Yuan Hongbin and Xiao Biguang, as well as Gao Feng.

(k) Recalling that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media constitute civil liberties which are essential for the normal exercise of trade union rights, the Committee urges the Government to take the necessary measures to ensure the immediate release of Li Wenming and Guo Baosheng and, especially, the provision of the necessary medical treatment to Li. The Government is further requested to take the necessary measures for the immediate release of the other individuals linked to the Workers' Forum who are set out in Annex III, if they are still being detained, and to provide the Committee with information on their status.

(l) The Committee requests the Government to investigate the dismissals of Li Wenming and his colleagues in 1993 and, if it appears that they were dismissed for their trade union activity, to take the necessary measures to ensure their reinstatement in their posts should they so desire.

(m) The Committee requests the Government to provide information in response to the allegations concerning the sentencing of two taxi drivers, Zheng Shaoqing and Chen Rongyan, to two years' re-education through labour for participation in a half-day strike in Zhuhai, a special economic zone.

B. The Government's reply

345. In a communication dated 5 March 1999, the Government provides the following additional information. As concerns the Labour Law of China which came into force on 1 January 1995, the Government recalls that this is the first basic law laying down overall labour standards and regulating labour relations since the founding of the People's Republic of China. The Act has filled in a gap in the development of the country's legal system.

346. As concerns section 34 of the Labour Law which provides that "a collective contract shall be submitted to the labour administration department after its conclusion" and the criticism made by the complainant in respect of limitations on collective bargaining, the Government recalls that section 33 provides:

The staff and workers of an enterprise as one party may conclude a collective contract with the enterprise on matters relating to labour remuneration, working hours, rest and leave, occupational safety and health, and insurance and welfare. The draft collective contract shall be submitted to the congress of the staff and workers or to all the staff and workers for discussion and adoption. A collective contract shall be concluded by the trade union on behalf of the staff and workers with the enterprise; in enterprises where a trade union has not yet been set up, such contract shall be also concluded by the representatives elected by the staff and workers with the enterprise.

347. The Regulations on Collective Contracts promulgated by the Ministry of Labour have made supplementary provisions to the above Act. Regulation 5 provides:

A collective contract is a written agreement which is signed by the parties to the collective bargaining on the basis of equality and reaching unanimity through consultation on matters relating to labour remuneration, working hours, rest and leave, occupational safety and health, and insurance and welfare according to provisions of law and regulations.

Regulation 13 provides: "The content, date and place of collective bargaining shall be determined by both parties through consultation." And Regulation 18 provides: "When a party to a collective contract proposes a discussion on the application and modification of the collective contract, the other party shall make a response and the negotiation should take place within seven days." According to the Government, this clearly demonstrates that the collective bargaining rights of the enterprise and of the trade unions are fully protected by Chinese law. Over recent years, there have been over 100,000 collective contracts examined by the labour security administration, which also shows that both the enterprise and the trade unions have exercised their collective bargaining rights in accordance with the law.

348. While section 34 does provide that a collective contract shall be submitted to the labour administration department after its conclusion and shall go into effect automatically if no objections are raised by the labour administration department within 15 days from the date of the receipt of a copy of the contract, the Government further recalls that Regulation 26 provides: "A letter of comment on the examination of the collective contract shall reach both parties to the collective contract within 15 days from the date of the receipt of the collective contract by the labour administration department." Regulation 28 provides: "Both parties to the collective contract, having received the letter of comment of the labour administration department, shall modify the provision(s) which is(are) null and void or null and void in part and shall submit the revised text to the labour administration department within 15 days for its re-examination." Hence the meaning of the word "submit" first of all refers to submitting the collective contract to the labour administration department for registration for statistical purposes; secondly, the labour administration department has the responsibility of examining whether the substance of the collective contract conforms to the laws and regulations of the country. If it conforms to the laws and regulations of the country, the collective contract then has legal binding force over the enterprise and its workers and staff. If the collective contract contains provision(s) which violates/violate the law, the labour administration department shall demand that both parties to the contract restart negotiation on the relevant provision(s) so as to reach new agreement, and resubmit it to the labour administration department for examination. This is because if the collective contract contains provision(s) which violates/violate the law, conciliation, arbitration or judgement over the relevant provision(s) will not be possible when a dispute over it/them occurs between the parties to the collective contract in future. This practice of examination and registration of collective contracts by the labour administration department is a common practice of many countries.

349. The Government also contests the statement that the Labour Law contains legislative provisions prohibiting the negotiation of wage increases beyond the level of the increase in the cost of living. The provision for the level of wages to be gradually raised on the basis of economic development with the State exercising macro-regulations and control over the total wages (section 46) actually means that the State should take effective action to exercise macro-regulation over the ratio between production and consumption and use productive resources more fully and more widely so as to avoid serious economic fluctuations and promote economic development and social progress. Thus, it can be seen that the relevant provision of the Labour Act is identical with the thrust of the Declaration of Philadelphia and the relevant documents of the ILO.

350. In fact, in China the wage level of a particular enterprise is determined by the trade union and the management of that enterprise themselves. Section 47 of the Labour Law provides that the employing unit shall independently determine its form of wage distribution and wage level for its own unit according to law and based on the characteristics of its production and business and economic results. The State only has legal provisions on guaranteeing the minimum wage but has not provided for its ceiling.

351. As concerns the question of strikes, the Government affirms that there is no provision for strikes in the Chinese Constitution. The Chinese Government has always tried to promote, establish and explore labour relations which can encourage the gradual improvement of working conditions and working life and maintains that a strike is only one of the means to handle a labour-management conflict, but not an end in itself. The Government's aim is to prevent and resolve labour disputes so as to establish a sound and harmonious labour relationship. At present, Chinese law provides that the settlement of a collective dispute between the employing unit and its labourers shall be as follows: the dispute shall be resolved by both parties through negotiation; if negotiation fails, the case can then be referred to the labour dispute arbitration committee for arbitration. If one of the parties does not accept the awards of arbitration, it can start a lawsuit with the people's court. The local people's government can call the parties concerned together to coordinate and deal with the dispute arising out of the signing of a collective contract. This practice accords totally with the provisions concerning the functions of labour administration of the relevant ILO documents. Moreover, it reflects the actual requirements of the Chinese society and conforms to the fundamental interest of the broad mass of workers. It is just under such a sound and harmonious social stability that the rapid development in the various aspects of Chinese society and of its economy, the improvements in working conditions for workers and the remarkable improvements in their living standards over the past 20 years have been achieved.

352. Concerning the lists of persons set forth in the appendices to the Committee's previous report on this case, the Government indicates that it has verified with the judicial departments of the country and submits the following information.

353. Of the persons on the list mentioned in Annex I, Tang Yuanjuan, Leng Wanbao, Li Wei, Wang Miaogen, Hu Nianyou and Wang Chanhuai were released; Yao Guisheng, Zhang Jingsheng and Li Wangyang were sentenced for robbery and are currently under detention.

354. Of the persons on the list mentioned in Annex II, Chen Gang, Liu Zhihua, Hu Min, Peng Shi and Guo Yunqiao all committed serious crimes of hooliganism, with the first three being sentenced to 11 years of fixed-term imprisonment, Peng to ten years of fixed-term imprisonment and Guo to 13 years of fixed-term imprisonment; Mao Yuejin, Wang Zhaobo and Huang Lixin were released; Huang Fan was sentenced to seven years of fixed-term imprisonment for hooliganism in 1989 but was freed in 1993 on commutation of sentence; Wan Yuewang and Pan Quibao were sentenced to three years of fixed-term imprisonment for hooliganism in 1989 and were released a long time ago; Yuan Shuzhu was investigated for hooliganism in 1989 and was released in August the same year.

355. Of the persons on the list mentioned in Annex III, the ten persons including Liu Jingsheng, Hu Shigen, etc., excluding Rui Chaohui, who was not found, all committed the crime of endangering state security and violated the criminal law of the country and have therefore been sentenced to imprisonment.

356. Of the persons on the list mentioned in Annex IV, Li Wenming, Guo Baosheng and Kuang Lezhuang were released; Liao Hetang, Fang Yiping, He Fei, Zeng Jiecheng, Lan Chunquan, Wu Chun, Zhang Wuyan, Wan Xiaoying and Song Xianke were all not sentenced; whereas Liu Hutang and Huang Zhong were not found.

357. Of the persons on the list mentioned in Annex V, Zhou Guoqiang was released in January 1998; Liu Nianchun left for the United States in December 1998 for medical treatment; Zhang Lin was released in May 1997 and in October he left for the United States but returned and sneaked into China in November 1998 and was later sentenced to three years of fixed-term imprisonment on whoring; Yuan Hongbin and Xiao Biguang were not sentenced; Zheng Shaoqing and Chen Rongyan were already released in January 1998; Li Zhongmin and Gao Feng were not found.

358. In conclusion, the Government points out that while the Chinese Constitution and Chinese law clearly provide for freedom of speech and freedom of association for the Chinese citizens, it also makes it a prerequisite that they can only exercise their rights within the scope stipulated by the Constitution and the law and should not bring harm to social security and the legitimate rights and interests of other people. Those included in the lists mentioned in the appendices, apart from those who could not be found, all committed acts which violate Chinese law. Most of them are criminals and their acts have nothing to do with freedom of association. The Chinese judicial departments have, in all cases, convicted them and measured their penalty on the basis of their actual crimes in accordance with judicial procedures provided for by the law. In the spirit of cooperating with the ILO in good faith and out of a sense of responsibility, the Chinese Government made careful investigations to find out the whereabouts of those in the lists in order to clarify the facts.

C. The Committee's conclusions

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

360. The Committee first observes that the Government's reply is limited to only certain elements of the national legislation and the status of the allegedly detained trade unionists.

National legislation

361. In its previous examination of this case, the Committee had recalled its conclusions in Case No. 1652 (286th Report) in respect of the 1992 Trade Union Act to the effect that the obligations set forth in sections 5, 8 and 9 of that Act concerning trade union activity prevented the establishment of trade union organizations that are independent of the public authorities and of the ruling party, and whose mission should be to defend and promote the interests of their constituents and not to reinforce the country's political and economic system. The Committee had further recalled that sections 4, 11 and 13 resulted in the imposition of a trade union monopoly and that the requirement that grass-roots organizations be controlled by higher level trade unions and that their constitutions should be established by the National Congress of Trade Union Members constituted major constraints on the right of unions to establish their own constitutions, organize their activities and formulate programme [see 286th Report, paras. 713-717]. The Committee therefore urged the Government to take the necessary steps to bring the Trade Union Act into conformity with the principles of freedom of association in the very near future.

362. The Committee deeply regrets that the Government has not provided any information concerning the measures taken or envisaged in response to its previous recommendations concerning the Trade Union Act which were initially formulated in 1993. It would therefore once again urge the Government to review the Trade Union Act in the light of its previous conclusions and take the necessary measures to amend it so as to ensure full conformity with the principles of freedom of association.

363. As concerns the Committee's conclusions in respect of the provisions in the 1995 Labour Law concerning collective bargaining, the Committee notes the Government's indication that the submission of collective contracts to the labour administration department is intended firstly to meet the need for registration for statistical purposes and secondly to enable the department to ensure that the substance of the contract conforms to national law and regulations. Furthermore, the Committee notes the Government's indication that section 46 which provides that wages shall be gradually raised on the basis of economic development actually refers to the guarantee of a minimum wage and not to any ceiling for collective bargaining purposes.

364. The Committee continues to note, however, that the wording of section 34 of the Law is quite vague in terms of the types of objections which might be made in respect of collective contracts providing simply that they shall go into effect immediately, "if no objections are raised by the department within 15 days". The Committee would therefore request the Government to keep it informed in respect of the practical application of section 34, including information on the types of objections actually raised in respect of any collective contracts submitted to the labour administration department, as well as on any measures taken to clarify the wording of this section.

365. As concerns the Committee's recommendation to amend the legislation so as to ensure that workers and their organizations are able to exercise strike action in defence of their social and economic interests, the Committee notes that the Government maintains that the current legislation, which provides for mediation and arbitration systems which preclude the right to strike (sections 79 to 83 of the Labour Law), adequately and appropriately reflect the requirements of Chinese society and the fundamental interests of the broad mass of workers. In these circumstances, the Committee must once again recall that it has always considered the right to strike to be one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 475]. It therefore requests the Government to take the necessary measures for the legislation to be amended so as to ensure that workers are not punished for the exercise of this right.

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

Detention of trade unionists

367. The Committee notes with interest from the information provided in the Government's reply that a certain number of trade unionists allegedly detained and included in the various appendices to its last report either have been released or were not sentenced.

368. The Committee must however note with deep concern that others continue to be detained, including certain individuals who had been named in earlier complaints and some who were detained as long ago as 1989.

Workers' Autonomous Federation (WAF)

369. As concerns the leaders and activists of the Workers' Autonomous Federation (WAF) (see Annex I), the Committee notes from the information provided by the Government that Yao Guisheng, Zhang Jingsheng and Li Wangyang continue to be detained for robbery. The Committee would recall, however, that the detention of these individuals had been raised in Case No. 1652 and that while, at that time, the Government had indicated that Yao Guisheng had been sentenced to 15 years' imprisonment for looting, the other two, according to the Government, had been sentenced to 13 years' for subversion against the Government [see 286th Report, annex]. During its interim examination of this case in 1993, the Committee had expressed its serious concern at the severity of the sanctions pronounced by the tribunals against these members or leaders of workers' autonomous federations and asked the Government to re-examine their cases in order to put an end to their detention [see 286th Report, para. 728(e)]. It had repeated this request when it made definitive conclusions in 1994 [see 292nd Report, para. 401(d)]. Finally, during its interim examination of this present case, the Committee called upon the Government to take the necessary measures for the immediate release of these trade unionists [see 310th Report, para. 367(e)]. In the light of its previous conclusions and recommendations concerning the detention of members of workers' autonomous federations, the Committee calls upon the Government to take all necessary measures to ensure the immediate release of Yao Guisheng, Zhang Jingsheng and Li Wangyang and to keep it informed of developments in this regard.

370. Moreover, given that the Government has provided no further information concerning the Committee's recommendation to set up an independent investigation into the alleged acts of ill-treatment carried out in detention against Tang Yuanjuan, Leng Wanbao and Li Wei [see 310th Report, para. 367(e)], the Committee would once again request the Government to establish an independent investigation in respect of these allegations and to keep it informed of the outcome.

1989 detainees

371. While noting from the information provided by the Government that many individuals included in the list of 1989 detainees have now been released, the Committee notes with deep concern that the following individuals are still serving sentences for committing the crime of "hooliganism": Chen Gang, Peng Shi, Liu Zhihua, Guo Yunqiao and Hu Min. The Committee deeply regrets that the Government has not provided any specific information on the nature of this crime of hooliganism. Under such circumstances and given the contradictory allegations made by the complainant that these individuals were arrested for having organized workers' demonstrations and strikes, the Committee can only maintain its previous conclusion that these individuals were arrested and sentenced for having carried out legitimate trade union activities [see 310th Report, para. 354]. It therefore would recall its previous recommendation in this regard [see 310th Report, para. 367(f)] and request the Government to take the necessary measures to ensure the immediate release of the above-mentioned individuals and to keep it informed in this regard.

The Free Labour Union of China (FLUC)

372. In its previous examination, the Committee had requested the Government to provide specific and detailed information on the charges brought against the members of the FLUC, including copies of any relevant court judgements. The Committee deeply regrets that the Government contents itself with merely repeating its previous statement that these individuals (with the exclusion of Rui Chaohui who was not found) had all committed the crime of endangering state security. In the absence of more detailed information in this respect, including the court judgements previously requested, and in the light of the allegations made in Case No. 1652 (not clearly denied by the Government) that there was a Communist Party directive calling for an investigation to track down the union [see 286th Report, para. 727 and 292nd Report, para. 388], the Committee cannot but conclude that these individuals have indeed been sentenced for carrying out legitimate trade union activities. It therefore calls upon the Government to take the necessary measures to ensure the immediate release of the FLUC members named in Annex III and to keep it informed of developments in this regard.

Beijing Workers' Autonomous Federation

373. The Committee recalls the very specific and detailed allegations made previously in this case concerning the detention, harassment and ill-treatment of Zhou Guoqiang and his wife, Wang Hui [see 310th Report, paras. 357-358]. While noting with interest that Zhou Guoqiang was released in January 1998, the Committee regrets that, once again, the Government has not provided any specific information in respect of the allegations of ill-treatment and harassment. The Committee must therefore call upon the Government to establish an independent investigation so as to determine the facts in this respect and punish those responsible. It requests the Government to keep it informed of the outcome of this investigation.

The Workers' Forum in Shenzhen

374. While noting with interest that the members of the Workers' Forum allegedly detained [see 310th Report, Appendix IV] have, according to the Government, either been released, were not sentenced or have not been found, the Committee notes with regret that the Government has provided no information in respect of its previous recommendation to investigate the dismissals in 1993 of Li Wenming and his colleagues. The Committee must therefore once again call upon the Government to investigate these dismissals and, if it appears that they were due to the exercise of trade union activity, to take the necessary measures to ensure that Li Wenming and his colleagues are reinstated in their posts should they so desire.

Other labour activists allegedly detained

375. In respect of its previous recommendations concerning alleged detainees listed in Appendix V of its interim report in this case (310th Report), the Committee further notes the information provided by the Government to the effect that: Liu Nianchun left for the United States for medical treatment in December 1998; Zheng Shaoqing and Chen Rongyan were released in January 1998; Yuan Hongbin and Xiao Biguang were not sentenced; and Gao Feng and Li Zhongmin were not found. The Committee notes with regret, however, that the Government has not provided any information in respect of its recommendation to establish an independent investigation into the serious allegations of torture and ill-treatment raised in respect of Liu Nianchun in order to determine and punish those responsible. It therefore once again requests the Government to establish an independent investigation into these serious allegations and to keep it informed of the outcome.

376. As concerns Yuan Hongbin, the Committee would recall that the complainant has not alleged that he was officially sentenced, but rather that he was confined to a library in Guiyang. The Committee therefore calls upon the Government to establish an investigation into the whereabouts of Yuan Hongbin and, if it turns out that he is being confined to a library, to ensure that his freedom of movement is immediately restored. It requests the Government to keep it informed of developments in this regard.

377. As concerns Zhang Lin, the Committee notes that, according to the Government, he was released in May 1997, left for the United States, but returned and sneaked into China in November 1998 to be sentenced later to three years' imprisonment for "whoring". The Committee would recall in this respect that the allegations concerning the initial detention of Zhang Lin related to his membership in the League for the Protection of the Rights of Working People. It would therefore request the Government to re-examine his case and, if it appears that this second sentencing is also linked to trade union activities, to ensure his immediate release. It requests the Government to keep it informed in this respect.

The Committee's recommendations

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

(a) Recalling that the Committee has already concluded that several provisions of the Trade Union Act are contrary to the fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes, the Committee once again urges the Government to take the necessary steps to ensure that sections 4, 5, 8, 9, 11 and 13 of the Act are amended as indicated in its conclusions.

(b) The Committee requests the Government to keep it informed in respect of the practical application of section 34 of the Labour Law, including information on the types of objections actually raised in respect of any collective contracts submitted to the labour administration department, as well as on any measures taken to clarify the wording of this section.

(c) The Committee once again urges the Government to take the necessary steps to amend sections 79 to 83 of the Labour Law as indicated in the conclusions so as to ensure that workers and their organizations are not punished for exercising the right to strike in defence of their social and economic interests.

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

(e) The Committee requests the Government to take the necessary measures to ensure the immediate release of Yao Guisheng, Zhang Jingsheng and Li Wangyang, members of workers' autonomous federations and to keep it informed of developments in this regard. It also requests the Government once again to set up an independent investigation into the alleged acts of ill-treatment carried out in detention against Tang Yuanjuan, Leng Wanbao and Li Wei and to keep the Committee informed of the outcome of the investigation.

(f) The Committee once again requests the Government to take the necessary measures to ensure the immediate release of Chen Gang, Peng Shi, Liu Zhihua, Guo Yunqiao and Hu Min, arrested in 1989 (see Annex II) and to keep it informed of developments in this regard.

(g) Regretting that the Government has not provided the specific and detailed information requested in respect of the charges brought against the members of the Free Labour Union of China cited in Annex III, the Committee calls upon the Government to take the necessary measures to ensure their immediate release and to keep it informed of developments in this regard.

(h) Noting with regret that the Government has not provided any specific information in respect of the allegations of ill-treatment and harassment relating to Zhou Guoqiang and his wife, Wang Hui, the Committee calls upon the Government to establish an independent investigation so as to determine the facts in this respect and punish those responsible. It further requests the Government to keep it informed of the outcome of this investigation.

(i) Noting that the Government has not provided any information in response to its previous recommendation concerning the dismissals of Li Wenming and his colleagues (Workers' Forum members) in 1993, the Committee once again calls upon the Government to investigate these dismissals and, if it appears that they were due to the exercise of trade union activity, to take the necessary measures to ensure that Li and his colleagues are reinstated in their posts should they so desire.

(j) While noting that Liu Nianchun has been released and gone to the United States for medical treatment, the Committee once again calls upon the Government to establish an independent investigation into the serious allegations of torture and ill-treatment raised in respect of Liu Nianchun in order to determine and punish those responsible. It requests the Government to keep it informed of the outcome of the investigation.

(k) The Committee calls upon the Government to establish an investigation into the whereabouts of Yuan Hongbin and, if it turns out that he is being confined to a library, to ensure that his freedom of movement is immediately restored. It further requests the Government to keep it informed of developments in this regard.

(l) The Committee requests the Government to re-examine the case of detention of Zhang Lin, a member of the League for the Protection of the Rights of Working People, and, if it appears that the sentencing is linked to his trade union activities, to ensure his immediate release. It requests the Government to keep it informed in this respect.

Annex I

Workers' Autonomous Federation (WAF) leaders and militants


Name	Government's latest information

Tang Yuanjuan	Released
Leng Wanbao	Released
Li Wei	Released
Wang Miaogen	Released
Hu Nianyou	Released
Yao Guisheng	Imprisoned for robbery
Zhang Jingsheng	Imprisoned for robbery
Wang Changhuai	Released
Li Wangyang	Imprisoned for robbery

Annex II

Additional list of 1989 detainees


Name	Government's latest information

Chen Gang	11 years' imprisonment for hooliganism
Peng Shi	10 years' imprisonment for hooliganism
Liu Zhihua	11 years' imprisonment for hooliganism
Guo Yunqiao	13 years' imprisonment for hooliganism
Mao Yuejin	Released
Hu Min	11 years' imprisonment for hooliganism
Wang Zhaobo	Released
Huang Lixin	Released
Huang Fan	Sentence commuted and released in 1993
Wan Yuewang	Released
Pan Quibao	Released
Yuan Shuzhu	Investigated for hooliganism in 1989 and released in the same year

Annex III

Free Labour Union of China detainees


Name	Government's latest information

Liu Jingsheng	Imprisonment for endangering state security
Hu Shigen	"
Kang Yuchun	"
Wang Guoqi	"
Lu Zhigang	"
Wang Tiancheng	"
Chen Wei	"
Zhang Chunzhu	"
Rui Chaohuai	Not found
Li Quanli	Imprisonment for endangering state security

Annex IV

The "Workers' Forum" in Shenzhen detainees


Name	Government's latest information

Li Wenming	Released
Guo Baosheng	Released
Kuang Lezhuang	Released
Liao Hetang	Not sentenced
Fang Yiping	"
He Fei	"
Zeng Jiecheng	"
Lan Chunquan	"
Wu Chun	"
Liu Hutang	Not found
Zhang Wuyan	Not sentenced
Wan Xiaoying	"
Song Xianke	"
Huang Zhong	Not found

Annex V

Other labour activists figuring in the complaint


Name	Government's latest information

Gao Feng	Not found
Zhou Guoqiang	Released January 1998
Liu Nianchun	Released and left for the US in December 1998
Yuan Hongbin	Not sentenced
Zhang Lin	Released in May 1997, went to the US and returned to China in November 1998. Presently serving three years' sentence of imprisonment
Xiao Biguang	Not sentenced
Zheng Shaoqing	Released in January 1998
Chen Rongyan	Released in January 1998
Li Zhongmin	Not found

Case No. 1988

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

Complaint against the Government of Comoros
presented by
the Organization of African Trade Union Unity (OATUU)

Allegations: Arrest of trade union officers

379. The Organization of African Trade Union Unity (OATUU) submitted a complaint in a communication dated 5 October 1998.

380. In the absence of a reply from the Government, the Committee postponed the examination of this case on two occasions. At its March 1999 meeting [see 313th report, para. 9], the Committee addressed an urgent appeal to the Government, drawing its 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, it might present a report on the substance of this case at its next meeting if the Government's information and observations are not received in due time.

381. Comoros 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

382. In its communication of 5 October 1998, the OATUU denounces violations of trade union rights and the free exercise of the right to organize. In particular, it reports the arbitrary arrest of four officers of the Union of Autonomous Trade Unions of Workers of Comoros (USATC) on 10 September 1998.

383. According to the complainant, Ibouroi Ali Tabibou, Abdérémane Mohamed Saïd, Mad Ali and Mdjomba Moussa, trade union officers of the USATC, were arrested solely because they had addressed an open letter to the President of the Republic of Comoros and had organized two days behind closed doors for all workers employed in the state administration. The complainant states that these actions were aimed solely at obtaining the payment of 17 months of arrears in wages owed to Comorian workers.

B. The Committee's conclusions

384. The Committee deplores the fact that, despite the time which has elapsed since the presentation of the complaint and bearing in mind the gravity of the facts alleged, the Government has not replied to any of the allegations raised by the complainant although it was invited to provide comments and observations on several occasions, including by means of an urgent appeal.

385. In these circumstances, and in accordance with the applicable rule of procedure [see 127th report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee is obliged to submit a report on the substance of this case in the absence of the information it had hoped to receive from the Government.

386. The Committee reminds the Government firstly that the purpose of the procedure instituted by the International Labour Organization to examine allegations concerning violations of freedom of association is to ensure respect for trade union rights in law and in fact. If this procedure protects governments against unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed factual replies concerning the substance of the allegations brought against them [see first report of the Committee, para. 31].

387. The Committee observes that the allegations concern the arrest of four officers of the Union of Autonomous Trade Unions of Workers of Comoros, Ibouroi Ali Tabibou, Abdérémane Mohamed Saïd, Mad Ali and Mdjomba Moussa. The Committee notes further that the complaint does not specify the period for which the trade union officers were detained or whether judicial proceedings have been instituted against them.

388. The Committee recalls firstly that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 71].

389. In the absence of a reply from the Government and specific factual information from the complainant concerning the circumstances of the arrests, the Committee can only stress the importance it attaches to the principle that all arrested persons should be subject to normal judicial procedure in accordance with the principles enshrined in the Universal Declaration of Human Rights, and in accordance with the principle that it is a fundamental right of the individual that a detained person should be brought without delay before the appropriate judge, this right being recognized in such instruments as the International Covenant on Civil and Political Rights [see Digest, op. cit., para. 97]. Finally, the Committee urges the Government, if it has not yet been done, to release the four trade union officers of the USATC without delay if it is found that they were arrested for reasons connected with the exercise of their trade union rights. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendation

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

Considering that the detention of trade union leaders for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular, the Committee urges the Government, if it has not yet been done, to release the four trade union officers of the USATC without delay if it is found that they were arrested for trade union reasons, and requests the Government to keep it informed in this regard.

Case No. 1984

Interim report

Complaint against the Government of Costa Rica
presented by
the International Union of Food, Agricultural, Hotel,
Restaurant, Catering, Tobacco and Allied Workers'
Associations (IUF)

Allegations: Acts of anti-union discrimination and
intimidation in plantations; ineffectiveness and excessive
delays in the processing by the authorities of
complaints of trade union persecution

391. The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) sent this complaint in a communication dated 21 September 1998, additional information in a communication dated 28 September 1998, and new allegations in a communication dated 5 May 1999. The Government sent its observations in communications dated 20 January and 16 March 1999.

392. 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

393. In its communication of 21 September 1998 the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) submitted a complaint against the Government of Costa Rica for its failure to guarantee the right to organize and to bargain collectively of its affiliate in Costa Rica, the Coordinating Organization of Banana Growers' Trade Unions of Costa Rica (COSIBA), which is a federation.

394. The IUF alleges that the Government does not ensure that its own legislation and legal decisions with respect to the exercise of trade union rights in banana plantations are properly respected or effectively applied. Various forms of repression of trade union leaders and trade unionists are taking place, including the compiling of blacklists, dismissals without just cause, assigning of the most strenuous tasks in a discriminatory manner and prohibiting trade union leaders access to the plantations. Over 150 cases are pending before the judicial bodies (some take as long as three or four years) and 60 are awaiting the decision of the administrative authorities. Some of these cases relate to violations of trade union rights committed over three years ago. This implies a refusal to grant trade union organizations a rapid solution to violations of this kind, leading to the dismissal of the workers involved and a loss of interest in the procedures, particularly as a result of the blacklists exchanged by employers. Moreover, the Ministry of Labour and Social Security has done nothing to remedy this situation in spite of the handing down of more than 13 legal decisions ordering them to do so. According to the IUF, the Ministry is ineffective and delays the processing of complaints of trade union persecution and unfair practices.

395. The IUF attaches to the complaint two statements by COSIBA dated 26 July and 7 September 1998 in which specific charges are made by its affiliated trade unions with respect to a number of banana companies (Bananera Isla Grande, Proyecto Agroindustrial de Sixaola, Chiriquí Land Company, Compañía Bananera del Atlántico).

First complaint by COSIBA

396. COSIBA's first complaint is as follows:

Agricultural Workers' Trade Union of Limón (UTRAL): at present (this complaint was submitted to the Committee in September 1998) the trade union has pending before the courts of the Province of Limón a socio-economic collective dispute in which it is seeking to enter into negotiations with the enterprise Bananera Isla Grande S.A. (which belongs to Chiquita Brand). The decision to submit a legal instrument of this kind to the courts is due to the enterprise's refusal to recognize the trade union or to enter into any type of negotiations. As regards the initial results of this action, the Civil and Labour Court of First Instance of the Atlántico-Limón region upheld the grievance, giving the enterprise 24 hours to appoint its representatives for negotiations -- which constitutes a major achievement given its implications -- thereby obliging it to begin the negotiation process. Although the enterprise was notified by both the trade union and the courts of the submission of the grievance, it did not stop its harassment of the workers who had signed the list of claims, despite the fact that the Labour Court ordered them not to engage in any type of reprisals. Furthermore, as a preventive measure the trade union appealed to the Ministry of Labour not to authorize any type of direct arrangement proposed by the enterprise, permanent committee or solidarity associations. It also requested an official inspection of the plantation, citing a number of examples of disregard for workers, but surprisingly the results of this inspection were detrimental to the workers, maintaining that they did not have the necessary official documents and allowing the enterprise to use this to nullify the complaint. Most of the workers have worked up to six years for this enterprise and have never encountered this type of problem before. It is thought that the reason is because the workers subscribed to a collectively negotiated instrument, as in all the plantations located in Sixaola there are workers who fit the same description. Perhaps the enterprise's reaction explains why 100 per cent of the workers supported the socio-economic grievance. Most of the workers at Isla Grande are of Guaymie origin, coming from Panama but working in Costa Rica.
In the plantations of the enterprise Proyecto Agroindustrial de Sixaola S.A. (PAIS S.A.), owned by the National Banana Corporation which is supposedly the regulating body of the banana sector, and in which the State of Costa Rica is a shareholder, the workers are harassed by the enterprise management to resign their membership of the trade union. The enterprise's officials have used pressure and blackmail and in some cases have even dismissed workers simply because they belong to the trade union. Immediately upon the workers deciding to join the trade union, the enterprise installed a security door to stop the trade union leaders entering and to monitor the affiliated workers. Security guards also appeared, behaving in an aggressive and threatening manner.
The Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI) has a collective agreement in force with the Chiriquí Land Company which is owned by Chiquita Brand. This trade union has succeeded in maintaining a collective agreement with numerous benefits for its workers; moderate success has been achieved in providing workers with a certain degree of dignity. For this reason this enterprise is using countless ruses in its quest to put an end to the only collectively negotiated instrument that currently exists in the banana plantations and has attacked the trade union leaders, accusing them of various invented actions. For example, the workers in plantations 96 and 97 at the Chiriquí Land Company (Chiquita Brand) presented a document in which they requested the division manager to intercede to encourage Mr. Ricardo Hernández, an official in the Human Resources Department, to adopt a position of respect for human rights, as he is an aggressive, insulting person who consistently violates the rights established in the collective agreement. The company took an aggressive stance in its reply to the trade union. A complaint was even made against the general secretary of SITRACHIRI alleging that some signatures were not actually attributable to the workers. The Coordinating Body of Banana Unions brought in its lawyer and is currently requesting that a handwriting test be carried out and also that preparations be made to submit a counter-claim because what the company is saying through Mr. Ricardo Hernández is false. The only definite fact is that this particular official is harassing unionized workers. Similarly, the enterprise has managed in a variety of ways to manipulate certain workers into submitting complaints and claims against the trade union and its leaders in order to harass and discredit the organization. To conclude, the executive committee is being severely persecuted.
The Industrial Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH) operates in the Sarapiquí sector (Heredia Province) in the plantations of the Compañía Bananera del Atlántico (Chiquita Brand). At no time has the enterprise let up from fruitlessly harassing the workers not to join the trade union, and seeing their efforts frustrated as the workers continue to become members, they persecute them using a number of the methods described at the beginning of the complaint. There has been such extensive and heavy pressure that some workers have gone to the offices of the trade union in order to resign their membership, following the instructions of the enterprise management. Sworn statements to this effect have been made by the workers. All the violations described in this complaint have been submitted to the Ministry of Labour and Social Security which has been entirely inefficient and has drawn out the proceedings for up to three years, leaving the trade union and its affiliates in a state of defencelessness. This has forced SITAGAH to appeal to the Constitutional Chamber to have its rights upheld, and more than 13 times the Ministry of Labour and Social Security has been found guilty of delaying the proceedings and required to pay the damages caused. To illustrate this situation, the following rulings have been handed down by the Constitutional Chamber: 2724-96, 1947-97, 4298-97, 5854-97, 6483-97, 182-98, 337-98, 339-98, 340-98, 338-98, 619-98, 1351-98, 2662-98.

397. The IUF adds that in the weeks following the first written declaration, the violations of trade union rights at the Costa Rican plantations not only continued but in fact increased. On 17 August 1998, the Isla Grande plantation not only refused to reinstate workers as it had been ordered by law, but dismissed 90 more, in particular immigrants who for many years had travelled every day from Panama. The police and Costa Rican immigration officials also cooperated with the company refusing to allow these workers to cross the border for three days, using lists supplied by the company to pick out the workers who supported the trade union in order to treat them in this discriminatory manner. The company then alleged that these workers had abandoned their posts and refused to give them work. According to the IUF, the trade union held two meetings with representatives of the Ministry of Labour but no measures have been taken to remedy the violations of trade union rights.

Second complaint by COSIBA

398. The IUF also sends the text of the second written declaration by COSIBA dated 7 September 1998 relating to the enterprise Bananera Isla Grande S.A. in which it relates the ongoing harassment of workers affiliated to the trade union who had signed the socio-economic collective dispute, consisting of pressuring the workers to sign blank pieces of paper in order subsequently to dismiss them and undermine the grievance; moreover, the workers are constantly being threatened by the foremen Enrique Urbina Mairena and José Santamaría Gabarrete among others, Alicio Ellington Ellington (office worker), Ricardo Hernández Coto in labour relations at the Chiriquí Land Company (Chiquita), the solidarity promoter Froylan Jiménez Salas and Mr. Adrián Alvarado Morales, the plantation manager, who put pressure on workers to join the Solidarity association they have tried to set up at the plantation, using arguments such as "it will benefit you whereas all the trade union does is give you problems", "the enterprise could shut down operations" and "it won't negotiate with the trade union". In addition, workers were shut in their offices to pressure them into signing the abovementioned blank sheets of paper. It was proposed to the workers that they sign a "direct arrangement" with the enterprise which is what happened on 14 July 1998, just four days after the workers had submitted the grievance to the courts. For this purpose they were taken to a private meeting at the home of the plantation manager in the company of Mr. Ricardo Hernández Coto, where a series of offers were made to the committee members such as the separate negotiation with them of high salaries and better working conditions. They were shown films and videotapes relating to the strikes that took place in 1984 in the south of Costa Rica and the trade union was blamed for the subsequent withdrawal by the Compañía Bananera de Costa Rica from that region; they were told that the strike had led to misery and abandoned plantations and if they did not want the same thing to happen at Sixaola they had to "negotiate" the "direct arrangement" being proposed to them. On that occasion attempts were even made to inebriate the workers' representatives in a restaurant. When the indigenous workers refused the proposals they were called "stupid and idiots" by the enterprise's representatives.

399. The day after the submission of the grievance (10 July 1998) a worker who had signed the list of claims and who was a member of UTRAL, Samuel Abrego Abrego, was dismissed. The workers Manuel Pineda Becker, Ernesto Abrego Santos, Alejandro Palacios Becker and Hilario Jiménez Miranda were unable even to sign the list of claims as they were dismissed when the enterprise became aware of their intention to sign. More recently, the following workers were dismissed: Dionisio Tomás Robinson, Seferino Eugenio Jaen, Venancio Abrego Abrego, Valentín Abrego Santos, Pineda Salazar Marchena, Clemente Abrego Ochi, Genio Pineda Salazar, Leonel N. García Estribí, Alejandro Gustavino Chamorro, Celestino Pinda Beker. All these workers have signed the list of claims and are members of the UTRAL trade union. On 17 August 1998, at the request of the representatives of Isla Grande S.A. and the other enterprises operating in the region, troops from the Civil Guard, Sixaola Commando, on the orders of Major Carlos Brenes, together with immigration officials and in the presence of representatives from the enterprise, blocked the workers at their respective workstations. In order to carry out the operation, which according to statements by Major Brenes was to target illegal Nicaraguan migrants, the Civil Guard troops had lists of workers affiliated to the trade union and of the signatories of the collective disputes and these workers were immediately returned to their place of origin. The enterprise' objective was to stop the workers reaching their posts in order subsequently to dismiss them for unjustified absence as in the case of Proyecto Agroindustrial Sixaola S.A. (PAIS S.A.), a subsidiary of the National Banana Corporation (CORBANA) in which the State of Costa Rica is the majority shareholder and which sells to Chiquita, which is currently seeking to dismiss workers affected by the "Civil Guard and Immigration Operation" carried out on 17, 18 and 19 August in which the foremen of this enterprise played a special role as "police officers" and "judges". Despite the complaint immediately lodged by the trade union, on the morning of 19 August over 100 workers were dismissed from the plantation, including managerial staff and foremen to give the impression that it was not a case of trade union persecution.

400. In its communication dated 28 September 1998, the IUF alleges that the conditions of Chiquita workers in Costa Rica are not improving at all as regards trade union freedoms and the free movement of trade union leaders. More specifically it indicates the following:

the security doors and security guards continue to be a problem in the Sarapiquí sector where they are still obstructing the entry of its leaders and affiliated workers, specifically at "Compañía Bananera Gacelas" where affiliation is growing rapidly;
at "Isla Grande S.A." the subsidiary of Chiquita is carrying out a sham sale to another subsidiary enterprise of Chiquita called "Chiriquí Land Company, División Sixaola", with the aim of undermining the socio-economic collective dispute submitted by the workers. As is already known, the grievance was allowed and the administrative means of redress have now been exhausted which is why the application for a legal strike was submitted to the labour judge of the Province of Limón. A large number of the workers have still not been reinstated in their posts, in spite of the judge's decision ordering the immediate reinstatement of all the workers dismissed in retaliation for having presented the collective dispute;
the campaign being waged against the Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI) continues with a view to eliminating the existing collective agreement; this campaign is led by Mr. Ricardo Hernández Coto, the enterprise's industrial relations manager, who has apparently been contracted for this purpose. With the same vigour a similar campaign is being waged in favour of "solidarity" with a promoter from the Juan XXII Social School having been called in for this purpose. The executive committee of the solidarity association imposed by the Chiriquí Land Company is made up of administrative representatives, in contravention of legislative provisions established to regulate solidarity associations.

401. Finally, in its communication of 5 May 1999, the IUF alleges that the banana company Chiriquí Land Company dismissed 16 workers of the Isla Grande S.A. agricultural complex, who wanted to join the Agricultural Workers' Union of Citron. These facts took place on 30 April 1999, a few days after their confirmation of membership had been transmitted to the company, in order to have their union dues checked off. The workers, like many of those who are employed by the Chiriquí Land Company (Chiquita, Unit 490) have no protection against occupational risks, are not affiliated to Costa Rica Social Security, and their salaries are not linked to the pay benchmarks set by the National Pay Board, since they were lowered to 5,000 colons (US$17) for two full weeks of work, without a single day of rest. This salary is also lower than the one agreed upon in their employment contract. In addition, following the fabricated dismissal motives, Mr. Gaitán Fernández (steward of the Trade Union of Workers of Agriculture, Cattle Raising and Associated Industries, and one of the most militant members of that union) was recently dismissed by the Gacelas agricultural enterprise.

B. The Government's reply

402. In its communication of 20 January 1999, the Government points out firstly that the complainant's allegations of violations of trade union rights are imprecise and that there is no record of such complaints at the Ministry of Labour and Social Security. Whatever the case may be, and considering among other things the magnitude of the communication under examination, the lack of evidence to confirm the claims contained in the complaint, the vagueness of its content and above all the deadlines given for the Government's response, the competent national authorities proceeded to carry out an examination of the investigations into trade union persecution and/or unfair labour practices submitted by the trade unions involved in Case No. 1984. The protection of trade union rights is one of the Government's principal activities and one to which it dedicates considerable attention. The Constitution and the legal system guarantee trade union rights and Costa Rica has ratified Conventions Nos. 87, 98, 135 and 141. On the basis of this concern for trade union rights, in May 1998 the Executive Branch submitted for the consideration of the Legislative Plenary, in accordance with the law, a bill for constitutional reform prepared with the technical assistance of the ILO, which would remove the prohibition for foreigners to exercise management positions or positions of authority in trade unions as prescribed in the section under examination.

403. Furthermore, it should be noted that in the current legal system, freedom of association is clearly established in Convention No. 87 of the International Labour Organization ratified by Costa Rica. This instrument includes freedom of association and trade union autonomy. Freedom of association is recognized on two levels, both individual and collective. On the collective level, the establishment without the need for previous authorization of trade union organizations that cannot be dissolved and, on the individual level, the possibility of freely joining such organizations. Article 7 of the Constitution confers "higher authority to laws" to the international Conventions approved by the Legislative Assembly. Many ILO Conventions, 46 in total, have been incorporated into the legal system of Costa Rica in this way and in keeping with the letter of the Political Constitution, are observed in a general and compulsory manner.

404. Furthermore, the Labour Code which dates from 1943 takes up the main principles concerning the protection of freedom of association contained in the Political Constitution and the abovementioned international labour Conventions and regulates them in sections 54-64 and 332 et seq. Among the serious attempts to modernize labour legislation and with the aim of developing constitutional standards pertaining to freedom of association and international Conventions, above all Conventions Nos. 87 and 98, the Legislative Assembly passed Act No. 7360 of 12 November 1993 which amends the Act concerning solidarity associations, the Labour Code and the Organization of the Ministry of Labour and Social Security Act. Among the most important reforms incorporated into the Labour Code by this Act it is important to underline the addition of Chapter III concerning "protection of trade union rights", which guarantees effective protection against all forms of anti-union discrimination. In effect, this chapter bans any "acts or omissions that tend to avoid, restrict, constrain or prevent the free exercise of the collective rights of workers, their trade unions or associations of workers" establishing also that "any act originating from them is absolutely null and void and will be penalized according to the form and conditions indicated in the Labour Code, its supplementary or related Acts, for the infringement of prohibitive provisions". As confirmation of the above, the legislation under reference provides that the members of trade unions in the process of being set up (for a period of no more than four months) enjoy labour stability, as do a certain number of trade union leaders (while exercising their duties and for six months afterwards) and candidates to the executive committee (for three months from the time their applications are made). In addition, Act No. 7360 establishes, in the event of the dismissal without just cause of workers protected by this stability, that "the competent labour judge will declare this dismissal null and void and will consequently order the worker's reinstatement and the payment of the arrears of wages, as well as the penalties to be imposed on the employer in keeping with this Code and its supplementary or related Acts". It establishes that "acts or omissions committed by employers, workers or their respective organizations which transgress the standards provided in the Conventions adopted by the International Labour Organization and ratified by the Legislative Assembly, and the standards provided in this Code and in social security legislation, constitute punishable offences". In the case of violations of these rights, the worker or his or her organization can have recourse to the relevant administrative body, in this case the National Labour Inspection Directorate of the Ministry of Labour and Social Security or directly to judicial means of redress. This Act grants considerable powers to the National Labour Inspection Directorate for the investigation of violations that have been brought to its attention, in keeping with the provisions made by the Constitutional Chamber on this subject in rulings Nos. 5000-93 and 4298-97. The Act empowers the National Labour Inspection Directorate to use "the means it considers to be appropriate" for this purpose which means that the investigating inspector can visit the work centre and obtain all available information; to this end the inspector can review payrolls, books, take statements, etc.

405. If the existence of unfair labour practices is discovered, the National Director of the General Labour Inspectorate informs the competent legal authority with priority over all other matters. Moreover, and in order better to protect the worker, the decision ordering the case to be transferred to the judicial authority cannot be appealed. If the violation of trade union rights is proven through legal channels the judge will order the reinstatement of the worker and the payment of the arrears of wages, without prejudice to the penalties to be imposed on the employer in accordance with the provisions of the Labour Code and its supplementary and related Acts. In short, Costa Rica has broad legal protection in the trade union sphere, contained in the regulatory framework outlined above, namely the Political Constitution, ILO Conventions and the Labour Code.

406. Furthermore, the Constitutional Chamber of the Supreme Court of Justice has also participated in protecting trade union freedoms, handing down relevant rulings in this area which are binding erga omnes except for itself. The following are some of these rulings:

Ruling No. 5000-93 handed down at 10:09 on 8 October 1993: this establishes that the dismissal of a workers' representative violates the fundamental right of association as the workers are deprived of their leaders and therefore of the appropriate and legitimate defence of their personal and trade union rights. The Constitutional Chamber determined that "a dismissal of workers' representatives, whether unionized or not, is legally inadmissible (even if the employers pay social benefits) as it violates the special protection granted to representation under the Political Constitution, international Conventions and other laws, to the personal detriment of the representatives and the workers they represent and whose fundamental right of association is also violated as a result of this dismissal, as they are deprived of their leaders and therefore of the appropriate and legitimate defence of their personal and trade union interests ...". Similarly, the Chamber provided that "the dismissal of regular workers must be resolved with equal regulatory support when the express or tacit reason is their membership of an association or trade union because this too violates their fundamental rights. It should be noted that a link to such an organization as a regular member brings into play higher values of good fellowship and social and labour harmony vis-à-vis which economic compensation, represented by the payment of social benefits, lacks legal validity because the will of the employer is constitutionally and legally restrained or restricted from the general perspective of workers' human rights and from the specific perspective of labour law which protects general public interests ...". This protection was subsequently confirmed in Costa Rican law with the issuing of Act No. 7360 of 4 November 1993.
Ruling No. 1696-92 handed down at 15:30 on 23 August 1992 and its corresponding addition and clarification handed down at 15:00 on 30 October 1992 (relating to public sector workers).
Ruling No. 4298-97 handed down at 16:45 on 23 July 1997 and the corresponding administrative guidelines: as regards the procedure for complaints of alleged trade union persecution and unfair labour practices, it is indicated that: "... For this purpose a procedure was established which begins with administrative means of redress before the National Labour Inspection Department of the Ministry of Labour and Social Security whose work is restricted to carrying out an investigation to determine whether or not there are grounds to submit a complaint through the competent legal channels". The procedure foreseen in sections 363 et seq. of the Labour Code is a special one as its main function is to ensure harmony in relations between workers and employers and as a result legal provisions of an industrial nature are evaluated without the fundamental objective being to find a final solution to the conflict between the parties but, as previously indicated, simply to determine whether or not there are grounds for submitting the complaint to the competent legal authority. To summarize the procedure established in the Labour Code: (1) it can be initiated at the request of one of the parties or by operation of law; (2) if it is clear from this and the documents submitted that the merits of the case should be heard, the parties involved will be summoned to a hearing in which all the evidence considered necessary will be submitted; (3) on the assumption that the documents and the evidence provided by the complainant are insufficient to determine whether or not it is necessary to examine the merits of the case, the National Labour Inspection Directorate shall order the appointed inspector to carry out a preliminary investigation in which he or she can look into the alleged violations using the means he or she considers appropriate; (4) if after this preliminary investigation the inspector considers that there should be an examination of the merits of the case, he or she will grant the parties a hearing, pursuant to section 365 of the Labour Code, to allow them to give statements on the facts investigated; (5) once this hearing has taken place a record will be drawn up and the report will be transmitted to the National Director of Labour; (6) the National Director of Labour then decides whether to submit the request to the competent judicial authority or to order the shelving of the file on the basis of a substantiated decision against which a discretionary remedy and an appeal before the Minister of Labour are possible. Concerning the procedure, the Chamber referred to adds: "... it is reasonable to expect that the National Labour Inspection Directorate shall respect a deadline ... (of two months) to conclude its administrative intervention (from the due submission of the complaint before this body until the decision to submit a complaint through judicial channels or to shelve the case) ...". The Government has respected the above terms pronounced by the Constitutional Chamber. In this respect the Minister of Labour and Social Security issued Directive DMT-063-98 dated 15 May 1998 in which the competent administrative authorities are reminded of their duty to process rapidly -- within two months --, without prejudicing the rights that derive from the principles of due process and legitimate defence, the processes applicable in cases of anti-union discrimination. At present the National Labour Inspection Directorate has set about processing the case within the given deadlines. In this respect the Government provides some examples of the efforts being made by the National Labour Inspection Directorate in order to comply in a reasonable manner with the deadline indicated by the Constitutional Chamber.

407. In addition, faithful to the principles that inspire the ILO, on 18 January 1999 the Minister of Labour issued a new directive in which he draws the attention of the competent bodies to the deadlines provided in the Chamber ruling and in the Directive issued on 15 May. The purpose of this is to guarantee that procedures relating to allegations of anti-union discrimination are completed within two months. Similarly, a copy of the 311th Report of the ILO Committee on Freedom of Association has been transmitted to the President of the Supreme Court of Justice under cover of official letter DMT-0068-99 dated 18 January 1999. In this document the judicial authorities are informed of the Committee's concern about slowness and long delays in deciding proceedings. The Government wishes to make plain its full readiness to remedy the concerns of the Committee on Freedom of Association regarding alleged delays in achieving justice through administrative processes to evaluate unfair labour practices, by defining reasonable policies to protect the rights of unionized workers and ensuring swift procedures without prejudice to the constitutional guarantees of due process and legitimate defence. It is the parties to the dispute who are primarily responsible for delaying the procedures in question by using the delaying actions and tactics available to them through due process, a situation the Government has informed the Committee on Freedom of Association about at great length. In this respect, the Government regrets that the complainant trade union is making inexact claims to the ILO which have now been superseded in national legislation and practice. As a result the complainants seem somewhat hasty in their claim that the "Government of Costa Rica does not ensure that its own legislation and legal decisions with respect to the exercise of trade union rights in banana plantations are properly respected or effectively applied".

408. Moreover, the Government refers to ruling No. 1317-98 handed down at 10:12 on 27 February 1998 (record No. 4222-A-92) and indicates that for a number of years the ILO bodies responsible for monitoring the application of international labour Conventions, particularly the Committee of Experts on the Application of Conventions and Recommendations and the tripartite Committee on the Application of Conventions and Recommendations of the International Labour Conference have made observations to the Government of Costa Rica relating to its adoption of the necessary measures to allow strikes in the agriculture (including banana plantations) and forestry sector and consequently in the public sector. For this reason, having evaluated the doctrine and legislation that uphold the prohibition of the right to strike in the agriculture and forestry sector contained in clause (b) of section 376 of the Labour Code, in August 1997 the Executive Branch presented a draft bill to the Legislative Assembly to repeal that clause. Similarly, in February 1998 the Constitutional Chamber issued its momentous ruling No. 1317-98 handed down at 10:12 on 27 February 1998, record No. 4222-A-92. This ruling declares clauses (a), (b) and (e) of section 376 and the second paragraph of section 389 of the Labour Code to be unconstitutional.

409. Furthermore, considering the lack of evidence to confirm the claims contained in the IUF's complaint, the Government gives an extensive summary of the investigations (not mentioned in the allegations) that the competent national authorities carried out into trade union persecution and/or unfair labour practices in banana plantations (18 cases between 1996 and 1998).

410. As regards the specific complaints cited by the complainant in Case No. 1984, the Government states that the National Labour Inspection Directorate has carried out the following inspections, in accordance with the law, on the basis of applications from the UTRAL, SITRACHIRI and SITAGAH trade unions:

Workers' Union of Limón: the National Labour Inspection Directorate has in its files seven records relating to complaints of trade union persecution and unfair labour practices. Only one of these complaints is against the enterprise Bananera Isla Grande S.A., and was received by the Directorate on 15 July 1998. This complaint of unfair labour practices has been legally processed and has now been submitted by the National Labour Inspection Directorate to the labour courts. During the administrative investigation the enterprise was found to be violating labour and social security legislation as well as committing unfair labour practices and trade union persecution when it was determined that the workers were being harassed to resign their membership of the trade union. With respect to the complaint submitted by the trade union following the end of the abovementioned investigation, concerning the alleged sale of the assets of the Isla Grande S.A. enterprise to the Chiriquí Land Company, so that it would be considered as part of the judicial process submitted, the Government wishes to state that the administrative authorities do not know whether this sale is fraudulent or not, given that the party concerned must take the appropriate legal action before the corresponding courts.
With respect to the inspection carried out on 23 and 24 July 1998 by officials from the National Labour Inspection Directorate at Isla Grande S.A., it was established that the enterprise was infringing labour legislation in the following ways: practising periodic dismissal (section 30, clauses (b) and (c) of the Labour Code); hiring a higher percentage of (illegal) foreigners than permitted by law (section 3 of the Labour Code); it was not registered with the Costa Rican Workers' Social Security Fund; workers were treated disrespectfully; pay was below the legal minimum, etc. All these inspection duties were carried out by investigating inspectors under the protection of the powers granted by the Organization of the Ministry of Labour and Social Security Act.
Of the remaining five cases relating to the complaint lodged by the UTRAL trade union relating to the Virginia, Manzanillo, Gandoca and Daytona plantations, owned by the enterprise Proyecto Agroindustrial de Sixaola (PAIS), and lastly the case relating to Proyecto Agroindustrial de Sixaola (PAIS), the competent ministerial department, through its body of inspectors, carried out the relevant investigations between 24 July and 20 November 1998. As a result of these investigations the corresponding complaints were submitted to the courts as described above. The investigations determined the existence of unfair labour practices in the form of harassment and threats so that workers would resign their membership in the trade union as well as the wrongful withholding of union dues deducted from workers. The Government wishes to underline the fact that at no time did the trade union in question denounce through administrative channels the presence of security doors or aggressive guards to prevent the entry of trade union officials.
Workers' Trade Union of the Sixaola Agroindustrial Project (SITRAPAIS): on 1 July 1997, this trade union lodged a complaint with the National Labour Inspection Directorate against the enterprise called Proyecto Agroindustrial de Sixaola (PAIS) for unfair labour practices and trade union persecution. This ministerial office processed the complaint according to the law, investigating the case and concluding in effect that within the enterprise workers were being dismissed for their membership of the trade union and affiliated workers were being intimidated and threatened as were those who intended to join the trade union. For these reasons, on 2 June 1998, the National Labour Inspection Directorate lodged a formal complaint with the competent labour courts. Although the initial complaint referred to chains on doors, padlocks and permanent security guards, at no time was it shown that these security measures were an obstacle to trade union officials entering the enterprise. [The facts relating to the complaint referred to in this paragraph are not mentioned in the IUF's complaint.]
Workers' Trade Union of the Chiriquí Land Company (SITRACHIRI): on 4 August 1997, this trade union lodged a complaint with the abovementioned Directorate against the Chiriquí Land Company. The same organization lodged an application for the withdrawal of the complaint, informing the ministerial office that the loss of interest in pursuing the investigation was due to the fact that a satisfactory agreement had been reached with the enterprise. Given these facts, the National Labour Inspection Directorate closed the case under examination. On 18 September 1997, SITRACHIRI submitted a further complaint to the ministerial authorities against the Chiriquí Land Company, Sixaola division, plantations 96 and 97, citing unfair labour practices and anti-union persecution. From the investigation carried out it was found that workers were being harassed to resign their membership of the trade union and preferential treatment was given to members of the Solidarity association, whose executive committee includes employers' representatives. In view of this result and the violations encountered, on 2 February 1998 the National Labour Inspection Directorate lodged a complaint with the courts against the Chiriquí Land Company. In this connection the Government wishes to stress that during the complaint and investigation process, SITRACHIRI made no reference to the infringement of the prevailing collective agreement, as stated in the complaint brought before this international body.
It is necessary to make it clear to the ILO that a review of the records in the archives of the National Labour Inspection Directorate reveal that there are no pending complaints relating to the Compañía Bananera del Atlántico.
Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH): there are records of seven complaints having been submitted between 1995 and 1998 through administrative channels, of which four concern Bananera Guapinol S.A. These complaints have been shelved, given that the results of the investigations carried out did not reveal any evidence of legal issues. As regards the complaint instituted in April 1996 by this trade union against Bananera El Roble Sociedad, this has been archived at the National Labour Inspection Directorate as the existence of anti-union persecution and unfair labour practices was not demonstrated. Furthermore, on 5 October 1998 the same complainant lodged a complaint with the National Labour Inspection Directorate for unfair labour practices and anti-union persecution against Amado Díaz Guevara, a member of the trade union's executive committee, against the enterprise Bananera Oropel S.A. This investigation was completed on 28 November 1998 when the investigating official submitted his final report and referred the case to the Directorate for a final decision, which is currently under consideration. On 29 October 1998, SITAGAH lodged a complaint against Bananera Las Gacelas S.A. for unfair labour practices and anti-union persecution, citing the fact that when they arrived at the enterprise the security guards would not let them pass. In view of the complaint, the National Labour Inspection Directorate called for an investigating inspector to carry out an investigation. He submitted his final report on 26 November 1998, referring the file back to the National Labour Inspection Directorate for its final decision. The Government stresses that this case is the only one under examination in which a complaint has expressly been sent to the national authorities by the trade unions denouncing the obstruction by employers' representatives of entry into the enterprise.
Complaint lodged by Mr. Florentino Valencia Valencia, for unfair labour practices and anti-union persecution against the Finca Talamanca, on 11 December 1995. The Government states that the action was shelved in November 1996 at the request of the plaintiff.
Workers' Trade Union, Plantaciones Agrícolas (SITRAP): on 10 March and 8 June 1998, this trade union lodged a complaint against the Corporación de Desarrollo Agrícola del Monte S.A. The complainant claims that the enterprise is engaging in anti-union conduct with the objective of removing Mr. Didier Leiton Valverde, a member of the workers' permanent committee and a trade union member. Once the corresponding investigation had been carried out, which was completed on 30 September 1998, it was found that the enterprise had in fact engaged in unfair labour practices to the detriment of Mr. Didier Leiton Valverde. For these reasons the National Labour Inspection Directorate proceeded to lodge a legal complaint on 5 October 1998. However, in view of a verbal request by the Labour Relations Department of the Ministry of Labour and Social Security, the process was interrupted since SITRAP and the representatives of the enterprise requested administrative conciliation in order to resolve the conflict that had arisen between the parties. As a result of this conciliation, in a document dated 13 October 1998, prepared by the above-noted department and sent to the National Labour Inspection Directorate by mutual agreement, the parties withdrew the complaint and therefore the file is pending examination.

411. As regards the alleged delay in administrative procedures in the trade union sphere, the Government reiterates its comments on Constitutional Chamber ruling No. 4298-97 handed down at 16:45 on 23 July 1997 and on the related administrative directives. All the statements by the complainant concerning alleged delays in the administrative processing of investigations of infringements of trade union rights concern aspects that have now been overcome as a result of the efforts made by various government bodies.

412. Nevertheless, the administrative and judicial procedures end when all stages, both administrative and judicial, have been completed, and not before. Omitting part of the due process of law established in the legislation, be it administrative or judicial, is tantamount to ignoring the Constitution. The parties to the dispute are primarily responsible for delaying the proceedings being considered, by using delaying actions and tactics available to them under due process, a situation that the Government of Costa Rica has informed the Committee on Freedom of Association about at great length and that the Committee has clearly noted in paragraph 201 of the 305th Report (November 1996). In that paragraph the Committee expressly recognizes the delay caused by the parties during these proceedings, concluding that the "administrative and legal actions brought by [the enterprise] meant that the Government was unable to go to the judicial authority before the end of August 1996 in order to obtain the penalties and compensation provided for in the legislation". It is incorrect to claim, as the complainant has done, that the National Labour Inspection Directorate intentionally delays the processing of complaints of union persecution and unfair labour practices, given that it has been shown that the conduct of the National Labour Inspection Directorate was entirely in keeping with the procedures recognized and approved both by the country's highest jurisdictional body and by the ministerial authorities. In this respect the Government once again expresses its regret that the complainant is making inexact claims which have now been superseded in national legislation and practice.

413. As regards the inspection measures carried out at the work centres referred to in this complaint, the Government sends a copy of the report, dated 8 December 1998, prepared by the inspector called in to do this work and sent to the legal section of the National Labour Inspection Directorate.

414. The Government attaches a copy of a report from the Labour Relations Department concerning the individual complaints referred to in the complaint under examination submitted to the ILO by the IUF and the involvement of the Labour Relations Department. According to that report:

Agricultural Workers' Trade Union of Limón (UTRAL): In accordance with sections 43, 44 and 45 of the Organization of the Ministry of Labour and Social Security Act, the Ministry of Labour and Social Security, through the Labour Relations Department, initiated the conciliation procedure proposed by UTRAL and convened the relevant conciliation meetings as authorized by law.
In this connection, and on the request of the trade union in question, the Labour Relations Department, pursuant to an official letter DRT-405-98 dated 16 July 1998, convened the representatives of Bananera Isla Grande S.A. and of the UTRAL trade union to a conciliation meeting to be held on 30 July 1998 at 9.30.
On that occasion, the trade union requested that a meeting be convened to settle the following issues with the enterprise: (1) recognition of UTRAL; (2) dispute settlement procedure; (3) deduction of union dues; (4) free entry to the plantation; (5) dismissal of workers affiliated to UTRAL, in spite of the submission of a collective dispute to the courts; (6) respect for workers affiliated to UTRAL.
On 30 July 1998 at the time specified for the abovementioned conciliation meeting only the representative of UTRAL attended and he requested on the record that the employers' representatives from Isla Grande S.A. be summoned once again. Furthermore, under cover of official letter DRT-438-98 dated 30 July 1998 a copy of the above record was sent to the National Labour Inspection Directorate.
In official letter DRT-439-98 dated 31 July 1998 the Labour Relations Department once again convened the parties concerned for a meeting on 19 August 1998; the leadership of the Civil Guard of Sixaola was involved in notifying the employers' representatives.
As regards the alleged dismissal of workers affiliated to UTRAL despite a collective dispute having been submitted to the courts in a decision dated 5 August 1998 the first civil and labour court of Limón, in proceedings relating to the socio-economic collective dispute presented by Mauricio Abrego and others against Bananera Isla Grande S.A., ordered the defendant to reinstate the workers dismissed from their usual duties.
In a note dated 11 August 1998, relating to the official convocation for 19 August 1998, signed by Mr. Adrián Alvarado Morales, the administrator of the Isla Grande plantation, and addressed to the Labour Relations Department, the author states that he is not the legal representative of that company.
On 19 August 1998, the date when the abovementioned conciliation meeting was due to take place, only the UTRAL representative attended, who consequently requested that the representatives of Isla Grande S.A. be summoned a third time, and sent a copy of this convocation to the National Labour Inspection Directorate of the Ministry of Labour and Social Security for their information and eventual action.
Once again, in official letter DRT-506-98 dated 24 August 1998 the parties were convened for a conciliation meeting on 24 September 1998 at 10.00.
On 12 September 1998, in a communication signed by the general manager of the Chiriquí Land Company, of which this Department received a copy, the executive committee of the Workers' Trade Union of Chiriquí Land Company and the workers of Isla Grande S.A. were informed that the enterprise Chiriquí Land Company had bought the assets of Isla Grande S.A. plantation, which were now covered by the collective agreement governing the Chiriquí Land Company.
As regards 24 September 1998, the date on which the conciliation meeting was to be held between the parties mentioned, it is noted that neither party attended the meeting.

415. Furthermore, with respect to the executive committee of the solidarity association being supposedly made up of administrative workers and imposed by the Chiriquí Land Company, the Government indicates that according to a sworn declaration, a copy of which was attached to the response, it is testified that in accordance with section 14 of Act No. 6970 concerning solidarity associations, none of the members of the executive committee in force in November 1998 holds any of the offices stipulated and therefore the complaint submitted by the complainants to the ILO is inexact. On the subject of the Trade Union of Agricultural, Livestock and Similar Workers of Heredia (SITAGAH), on 22 July 1998, Mr. Ramón Barrantes Cascante, in his capacity as general secretary of SITAGAH, addressed a request to the Ministry of Labour to summon the employers' representatives of the Compañía Bananera Gacela S.A. to a meeting to evaluate "... the reasons why the security guard at that company acted in an unusual manner when, on 9 July, Mr. Félix Andino in the performance of his duties approached the security door situated at the entrance to the plantation and the security guard did not raise the door although he knew that the worker was working for the enterprise and the tractor he was driving belonged to the enterprise ...". By reason of the above-noted action, the Labour Relations Department in official letters DRT-418-98 dated 23 July 1998 and DRT-457-98 dated 5 August 1998 convened the parties in question to a meeting to proceed with the respective conciliation procedures. Notes sent to that Department by the employer on 1 and 13 August 1998 indicate that "The security guards have the obligation to keep the access route for vehicles to the plantation closed in order to guarantee as far as circumstances permit the security of the people who work for it and of their property. Vehicles of all kinds, whether privately owned or the property of the plantation, must stop at the main gate before they can enter. It is not true that the guard identifies vehicles in the distance and immediately proceeds to open the gate. This procedure is contrary to all security standards. Mr. Andino, the driver of the tractor, is obliged to stop the tractor at the main gate to the plantation and wait for the guard on duty to clear the way for him to enter." Although the employers' representative did not appear in person at the hearings, the Department drew up two records of the meetings dated 4 and 19 August 1998.

416. On another matter, relating to the allegation by the complainant requesting free passage throughout the banana plantations for trade union leaders, the Government states that in addition to free passage and the right to hold meetings being a constitutional right, the administrative directive issued by the Ministry of Labour on 18 January 1999, mentioned above, orders the competent authorities "... to remain constantly vigilant in the protection of workers' collective rights in order to ensure that the constitutional right of workers and their trade union leaders to hold meetings is not suppressed and their right to hold meetings and to undertake peaceful industrial action is upheld ...".

417. The Government considers that the complainant is wrong to allege facts which in many cases have been superseded by national legislation and in others have been attended to and solved by the competent administrative authorities. It refers to the regulations that protect trade union rights and the jurisprudence that has originated from the highest jurisdictional body, to the administrative measures taken by the National Labour Inspection Directorate and the Labour Relations Department in dealing with and solving the complaints under examination, and to the guidelines issued by the Ministry of Labour that ensure as a whole the protection of workers' trade union rights, requested by the complainants in the action under examination.

418. In this context, the Government states that the Ministry of Labour and Social Security and also the other competent administrative and jurisdictional authorities have acted in the case under examination in accordance with the law and continue to make enormous efforts to guarantee that prevailing legislation is observed by the employers' sector in the matter in question. In any event, it is submitted that it is not in conformity with legal and moral principles to censure someone when that person has not been entitled to defend himself or herself. The Government has given its position in this document, to the best of its knowledge, concerning the complaints, confirming its commitment to guarantee the observance of trade union rights contained in prevailing legislation without detriment to the daily efforts being made by the competent authorities in order to achieve harmony in labour relations.

419. Furthermore, in support of harmonious labour relations in Costa Rica and as a guarantee of good order and social justice, the Government states that the Ministry of Labour has issued instructions to the competent authorities (Office of Industrial Affairs and National Labour Inspection Directorate) for them to summon the relevant employer and attend to the list of claims for mediation presented by the complainant. Likewise, to enable them to carry out a thorough evaluation of the complaint under examination and any other studies, analyses and/or investigations necessary, the abovementioned authorities were informed about all facts known to the administration at the time that this complaint was submitted to the ILO (Case No. 1984).

420. In its communication dated 16 March 1999, the Government sends a long report from the Director and General Inspector of Labour concerning certain issues raised by the complainant and in particular the alleged 13 decisions for censuring delays in the administration of justice referred to by the IUF, and also ten of the rulings handed down by the Constitutional Chamber, most of which do not correspond to the parties to the dispute or to decisions against the Ministry of Labour, as suggested by the IUF. The report indicates the various guidelines and measures adopted by the authorities to enhance the ongoing development of effective and prompt protection in the event of the violation of trade union rights. In keeping with the provisions of ruling No. 4298-98 handed down by the Constitutional Chamber which is available on record, a number of directives issued by the National Labour Inspection Director -- the person dealing with the matter before us -- can be found in the much-quoted report, such as Directive No. 1331-98 dated 27 July 1998 concerning the "Administrative procedure to apply in cases such as trade union persecution and unfair labour practices", Directive No. 288-99 dated 17 February 1999 entitled "Legal obligations pertaining to the required treatment when dealing with accusations of unfair labour practices" and Directive No. 289-99 dated 17 February 1999 entitled "Referral of copy of official communication DMT-0130-99 and attached documentation relating to the complaint submitted to the ILO by the IUF".

421. On the basis of the above considerations, the Government seeks the dismissal of the complaint submitted by the IUF in its entirety as the situations denounced have been addressed by the competent authorities in accordance with the law.

C. The Committee's conclusions

422. The Committee observes that the allegations submitted in this case relate essentially to various acts of anti-union discrimination and intimidation, practices undermining collective bargaining, obstacles to the access of trade union officials to the plantations and to the ineffectiveness of and excessive delays by the administrative and judicial authorities in processing complaints of trade union persecution and unfair labour practices. The Committee notes the extensive and detailed reply from the Government. It also notes the Government's indication that some of the allegations presented by the complainant have not been brought before the national authorities and its declaration that instructions have been issued to the competent authorities to attend to these allegations and to carry out any necessary studies, analyses and/or investigations. As regards the request by the Government to dismiss the IUF's complaint because the situations had been addressed by the competent authorities in accordance with the law, the Committee recalled that its mandate "consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 6].

Allegations relating to Bananera Isla Grande S.A.

423. According to the allegations, the collective dispute that arose in this enterprise occurred as a result of UTRAL submitting a list of claims on 10 July 1998 in the context of commencing the collective bargaining process; the following day one of the signatories of the list of claims (Mr. Samuel Abrego Abrego) was dismissed; a number of days previously the enterprise had already dismissed various workers whose intention of signing the list of claims was known to the enterprise (Mr. Pineda Becker, Mr. Abrego Santos, Mr. Palacios Becker and Mr. Jiménez Miranda). On 5 August 1998, the judicial authority ordered that the dismissed workers be reinstated in their duties; on 17 August 1998 the enterprise refused to reinstate these workers and dismissed 90 more who had signed the list of claims (according to the complainant, these dismissals occurred as follows: on the request of Bananera Isla Grande S.A. and other enterprises operating in the region, from 17 to 19 August, in the presence of enterprise representatives, the Civil Guard and immigration officials, citing an alleged operation targeting illegal immigrants and using lists of workers affiliated to the trade union and signatories of the list of claims, stopped workers crossing the border in order later to dismiss them alleging "unjustified absence"); a large number of the dismissed workers were not reinstated in their duties. In addition, the workers from the enterprise were pressured to join a solidarity association that steps had been taken to establish at the plantation; it was twice proposed to the workers to sign a "direct arrangement" with the enterprise (outside the trade union) and the committee which was to negotiate it was offered better working conditions; pressure was also placed on the trade union members to sign blank pieces of paper in order to dismiss them and put an end to the dispute. Furthermore, the complainant alleges that the enterprise is carrying out a sham sale to another enterprise (Chiriquí Land Company, Sixaola Division) in order to undermine the collective dispute which is before the judicial authority

424. According to the Government: (1) The National Labour Inspection Directorate received a complaint on 15 July 1998 against the enterprise Bananera Isla Grande S.A.; the administrative investigation found that the enterprise was involved in unfair labour practices and anti-union persecution, it being determined that the workers were being harassed to resign their membership of the trade union and that the enterprise was infringing labour legislation by practising periodic dismissals, hiring a higher percentage of (illegal) foreigners than allowed by law, paying wages below the legal minimum, not according workers the appropriate respect, not registering workers with the Costa Rican Social Security Fund, etc. (2) As a result of the investigations, the National Labour Inspection Directorate submitted a complaint to the labour courts; on the request of the UTRAL trade union, this Directorate had previously invited the parties to a number of conciliation meetings (as from 30 July 1998) concerning the recognition of the trade union, the deduction of union dues, free entry to the plantation, the dismissal of UTRAL members despite the submission of a collective dispute to the courts, and respect for workers affiliated to the trade union; nevertheless, the enterprise failed to attend these meetings. (3) On 5 August 1998, the judicial authority ordered the reinstatement of the dismissed workers in their usual duties. (4) On 12 September 1998 the enterprise Chiriquí Land Company bought the assets of Bananera Isla Grande S.A.; as a result the workers are now covered by the collective agreement of the Chiriquí Land Company; the authorities do not know whether or not this sale is fraudulent given that in order to determine this the party concerned must institute the necessary action before the courts.

425. The Committee observes that the issues relating to the collective dispute that occurred at Bananera Isla Grande S.A. were the subject of an administrative investigation that respected the legal deadline of two months. After the investigation the administrative authority submitted a complaint to the judicial authority and convened the parties to various conciliation meetings which the enterprise representatives did not attend. Observing that during its investigation the administrative authority found that workers were being harassed to resign their membership of the trade union, that there were considerable violations of labour legislation and that on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had so far been dismissed (five in all), the Committee must deplore these facts and requests the Government to send it the text of the final decision handed down by the judicial authority and to ensure compliance with the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers. As regards the remaining allegations (dismissal, alleging "unjustified absence", of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants that occurred between 17 and 19 August 1998 in which the Civil Guard and immigration officials were involved in the presence of enterprise representatives at the border, using lists of workers affiliated to the trade union; pressure placed on workers to join a solidarity association; proposal to workers to sign a "direct arrangement" with the enterprise outside the trade union; pressure on trade union members to sign blank pieces of paper), the Committee requests the Government to forward its observations in this respect.

426. Concerning the alleged sham sale of Bananera Isla Grande S.A. to another enterprise (Chiriquí Land Company) in order to undermine the collective dispute which was already before the judicial authority for consideration, the Committee notes the Government's declaration that on 12 September 1998 the Chiriquí Land Company bought the assets of Bananera Isla Grande S.A., that the workers were from then on covered by the collective agreement of the Chiriquí Land Company (the collective agreement is deemed to be satisfactory by the complainant) and also that in order to determine whether or not the sale was fraudulent the party concerned must submit the necessary action to the courts.

Allegations relating to the enterprise PAIS S.A.

427. According to the allegations, in this enterprise the members of UTRAL are being harassed to resign their membership of the union and some workers have even been dismissed simply because of their union membership; in addition, the enterprise has installed a security door to stop trade union officials from entering and has brought in security guards who act aggressively and issue threats.

428. The Committee notes the Government's statements that administrative investigations were instituted in November 1998 and as a result of the investigations (which determined the existence of harassment and threats to workers to resign their membership of the trade union and the wrongful retention of union dues) the corresponding complaints were lodged with the courts. The Committee requests the Government to forward to it the text of the decision rendered. Likewise, observing the Government's indication that the trade union has never complained through administrative channels of the existence of security doors and guards who act aggressively to stop trade union officials entering, and that the Government has issued instructions for the competent authorities to address these allegations and adopt the appropriate measures, the Committee requests the Government to keep it informed in this respect.

Allegations relating to the Compañía Bananera del Atlántico

429. According to the allegations, this enterprise pressured workers to such an extent that some of them resigned their membership of the SITAGAH trade union, following the enterprise's recommendation; the complainant claims that it has sworn declarations by workers to prove this. The complainant indicates that the complaint to the Ministry of Labour was entirely fruitless, forcing the trade union to apply to the Constitutional Chamber to have its rights upheld. It refers to 13 decisions concerning its members handed down by that Chamber in which, it maintains, the Ministry of Labour was found to have delayed proceedings and ordered to pay damages.

430. The Committee notes the Government's statement that a review of the records in the archives of the National Labour Inspection Directorate revealed no trace of any pending complaints relating to the Compañía Bananera del Atlántico.

431. With regard to other enterprises that are not included in the allegations in the current complaint, the Government indicates that investigations undertaken in relation to seven complaints submitted by SITAGAH between 1995 and 1998 show that in four of these complaints there was no proof, in one complaint trade union persecution and unfair labour practices were not proven, in another the administrative investigation ended in November 1998 and was referred to the National Labour Inspection Directorate for a final decision (which is under examination) and in the last administrative investigation which ended in November 1998 (the complaint was made on 29 October 1998) the file was submitted to the National Labour Inspection Directorate for a final decision.

432. The Committee observes that the allegations relating to pressure by the Compañía Bananera del Atlántico on workers to resign their membership of the trade union are too vague as there is no indication of when the pressure occurred, the workers' declarations are not attached, nor are their names. Nevertheless, the complainant refers to 13 decisions handed down by the Constitutional Chamber and seems to base its allegations on the ineffectiveness, in its view, of the Ministry of Labour in processing the complaints submitted to it. The Committee therefore refers to the conclusions it formulates below concerning the alleged ineffectiveness of the Ministry of Labour and the delays in the processing of complaints, where the decisions in question are examined.

Allegations relating to the Compañía Bananera Gacelas

433. According to the allegations, in this enterprise where there has been a rapid rise in unionization, security doors and security guards are being used to stop the free passage of trade union leaders.

434. The Committee notes the Government's declarations that on 22 July 1998 the trade union SITAGAH requested an examination into why security guards obstructed the entry of a worker who arrived at the enterprise. In August 1998, following conciliation procedures by the administrative authorities, the enterprise indicated in writing that the access route for vehicles to the plantation is kept closed in order to guarantee the security of the persons working there and of their property and that the person referred to in the complaint who wanted to enter had to stop the tractor at the access gate to the plantation and wait for the guard to clear the way for him to enter. The Committee notes the Government's general statement referring to the free passage of trade union leaders in plantations, that the right to hold meetings and the right of passage are constitutional rights and that the Directive issued by the Ministry of Labour on 18 January 1999 orders the competent authorities to remain constantly vigilant so that the right of workers and their trade union leaders to hold meetings and engage in peaceful industrial action is not suppressed. Given that the allegations included no names or dates relating to obstacles to the passage of trade union leaders and observing that according to the annexes to the Government's reply the trade union's complaint refers to one single worker from the enterprise driving a tractor, and makes no reference at all to whether it was a trade union leader, the Committee will not pursue the examination of these allegations.

Allegations relating to the Chiriquí Land Company

435. According to the allegations, the head of the human resources department at this enterprise behaves in an aggressive and insulting manner, persecutes unionized workers and constantly violates the rights established in the collective agreement. When the trade union complained about this behaviour, the enterprise denounced the general secretary of SITRACHIRI and persuaded a number of workers to take legal proceedings against the trade union and its leaders, resulting in the executive committee of the trade union being severely persecuted. In addition, in violation of legislation, the enterprise is campaigning for "solidarity", and administrative representatives from the enterprise belong to the solidarity association.

436. The Committee notes the Government's statement that, following the investigations corresponding to the complaint submitted by SITRACHIRI on 18 September 1997, the National Labour Inspection Directorate lodged a complaint with the courts against the enterprise on 2 June 1998, it having been proven in the investigation that workers were being harassed to resign their membership of the trade union and that members who joined the solidarity association were receiving preferential treatment. According to the Government, the trade union did not submit any complaints relating to the violation of the prevailing collective agreement to the administrative authorities. Lastly, the Government states with reference to the alleged inclusion of administrative officials in the executive committee of the solidarity association that, according to an attached sworn declaration, no member of the executive committee in force in November 1998 fits this description.

437. The Committee requests the Government to send it the text of the decision handed down by the judicial authority concerning the complaint submitted by the administrative authorities.

Allegations relating to the ineffectiveness and
excessive delay by the authorities in processing
complaints of the violation of trade union rights

438. According to the allegations, these delays occur both in the administrative and the judicial bodies; 60 cases -- administrative body -- and over 150 cases -- judicial body -- are pending decisions by the respective authorities (at times the judicial proceedings have taken three or four years); the complainant refers to 13 decisions handed down by the Constitutional Chamber in which the Ministry of Labour has allegedly been censured for delaying procedures and required to pay damages.

439. The Committee notes the Government's declarations and in particular that the alleged delays in the administrative procedures no longer occur and have been overcome in legislation and national practice due to various recent actions and efforts by the Government and governmental bodies and to decisions and rulings handed down by the Constitutional Chamber to address the concern expressed by the Committee on Freedom of Association in earlier cases where delays were alleged. The Committee notes with interest that: (1) as a result of ruling No. 4298-97 handed down by the Constitutional Chamber on 23 July 1997, the administrative authorities are required to carry out the applicable procedures for alleged trade union persecution and unfair labour practices within two months; (2) in Directives dated 15 May 1998 and 18 January 1999 this duty was reiterated by the Ministry of Labour to the competent administrative authorities, and the National Labour Inspection Directorate is endeavouring to process cases within the set deadline; (3) in an official letter dated 18 January 1999 the President of the Supreme Court of Justice and the judicial authorities were informed of the Committee's concern about excessive slowness in the handing down of decisions; (4) by way of Constitutional Chamber ruling No. 1317-98 handed down on 27 February 1998 the prohibition to strike in the agricultural (including the banana plantations) and forestry sector (section 376(b) of the Labour Code) was declared to be unconstitutional; (5) the competent administrative authorities are intervening at the request of the trade unions to achieve extrajudicial conciliation. The Committee also notes the Government's indication that the administrative and judicial processes end when all stages -- administrative and judicial -- have been completed, that not to respect due process would be the same as rejecting the provisions of the Constitution and that it is the parties to the dispute who are primarily responsible for delaying proceedings by using delaying tactics and actions.

440. The Committee notes the report by the Director and General Inspector of Labour sent by the Government. It observes that in keeping with the information sent by the Government, the report shows that ruling No. 4298-97 handed down by the Constitutional Chamber of the Supreme Court of Justice dated 23 July 1997 establishes that the administrative procedure for investigating complaints of alleged trade union persecution and unfair labour practices (or other investigations or procedures established in the Labour Code) is a special one and differs from the general public administration procedure; this ruling indicates the guidelines to be adhered to in future in this special procedure and establishes a deadline of two months for the National Labour Inspection Directorate to conclude its administrative intervention. According to the report, before the ruling was handed down, the parties involved in industrial administrative procedures used all possible legal remedies available to them to try to strengthen and guarantee their position, delaying and obstructing the procedures with their various appeals, assessments and petitions which in practice led to the administration being slow and inefficient in resolving the dispute submitted by the trade unions. The report adds that the National Labour Inspection Directorate has taken steps to promote the ongoing development of efficient and prompt protection and has been adapting itself to the guidelines of the Constitutional Chamber, having also handed down a number of Directives such as No. N-1331-98 of 27 July 1998, to be applied in conjunction with the administrative procedure to adhere to in cases such as trade union persecution and unfair labour practices.

441. With respect to the alleged 13 decisions handed down by the Constitutional Chamber censuring the Ministry of Labour for having delayed procedures (the number of decisions is indicated by the complainant), the Government, reflecting the report by the National Director and National Inspector of Labour, declares that most of the decisions or rulings handed down by the Constitutional Chamber do not concern the parties in the case before the Committee nor refer to judgements pronounced against the National Labour Inspection Directorate or the Ministry, contrary to what is claimed by the complainant. Ten of the 13 decisions handed down by the Constitutional Chamber and mentioned by the complainant are attached to the report. The Committee observes that an examination of the ten decisions attached reveals the following: (1) four of the decisions (Nos. 0619-98, 1351-98, 1947-97 and 5854-97) do not refer to trade union matters; (2) one decision (No. 6483-97) shows that eight months passed before the Ministry of Labour convened a conciliation hearing for three enterprises (requested by the trade union) in October 1997 to present the new trade union executive committee; (3) one decision (No. 0338-98) shows that a complaint of trade union persecution and unfair practices was resolved by the administrative authority on 28 November 1997, 28 months after its submission; (4) four decisions (Nos. 0337-98, 0339-98, 0340-98 and 4298-97) show that between 13 and 24 months passed between the submission of the complaint and the date on which the respective decision was handed down by the Constitutional Chamber, with these dates being situated for the various cases between 23 July 1997 (when the Constitutional Chamber established the duration of the administrative procedure at two months) and 21 January 1998; in these decisions the Constitutional Chamber indicates that the administrative authority did not respect the deadline of two months for the completion of the administrative procedure and rejects the arguments put forward by the Ministry of Labour citing the limited number of officials, limited travel allowances and means of transport, the high number of appeals and interlocutory applications lodged by the parties, the high number of cases submitted or the need to adhere to chronological order when processing complaints.

442. Furthermore, the Government referred in its reply to administrative investigations in banana plantations that the IUF does not mention in its complaint. The Committee observes that according to the information annexed by the Government, since ruling No. 4298-97 was handed down by the Constitutional Chamber on 23 July 1997 establishing a deadline of two months for the completion of the administrative procedure, in the majority of cases (particularly in 1998) these procedures have been completed within the legal deadline of two months from the presentation of the administrative complaint. In seven cases the administrative authority has lodged a complaint with the judicial authority; two cases have been filed and in one case the parties reached an agreement and one is currently in the preliminary stage.

443. The Committee concludes: (1) that the 60 cases of violation of trade union rights before the administrative body and the over 150 cases before the judicial body, which according to the complainant were affected by delays, were not proven by the complainant as it put forward these figures without offering any further evidence and providing details only concerning a limited number of cases; (2) since 1998 there has been a definite improvement in administrative procedures to process complaints of violation of trade union rights, with these now generally respecting the deadline of two months established by the Constitutional Chamber in July 1997, as demonstrated by the documentation the Government attaches with respect to the banana plantations; (3) nevertheless, in a number of decisions handed down by the Constitutional Chamber and provided by the complainant, even some handed down after the decision of July 1997, and in a number of cases mentioned by the Government, there is evidence of delays, sometimes considerable, in the administrative procedures.

444. In these circumstances, given the fact that the Ministry of Labour has cited before the Constitutional Chamber as the reasons for the delays the limited number of officials, the limited travel allowances and means of transport, the high number of appeals and interlocutory applications lodged by the parties, the high number of cases submitted and the need to adhere to chronological order in the processing of complaints, the Committee requests the Government, in order to consolidate the concrete improvements seen in the rate of completion of administrative procedures in the case of violation of trade union rights, to take measures to guarantee that the complaints submitted through administrative channels are fully processed within the deadline of two months established by the Constitutional Chamber.

445. Furthermore, bearing in mind that respect for this deadline of two months in the administrative procedure does not immediately guarantee redress for acts of anti-union discrimination or interference (as at present when the administrative authorities confirm such acts they must submit a complaint to the judicial authority for there to be redress) and taking into account the complainant's claim, not refuted by the Government, that at times the judicial processes take up to three or four years and that in other complaints relating to Costa Rica the Committee itself has found there to be excessive delays in judicial proceedings, the Committee requests the Government to take measures to amend legislation so that the effects of the anti-union acts confirmed by the administrative authority are suspended until the judicial authority hands down its sentence or decision concluding the matter. This is particularly important in order to preclude the absence of a judicial decision over a long period, in particular in cases of dismissal or other serious prejudicial measures or when the parties to the dispute are using the delaying tactics referred to by the Government, which are difficult to avoid when procedural guarantees and due process are respected.

446. Finally, the Committee requests the Government to provide its observations on the latest IUF allegations concerning the anti-union dismissals in the Isla Grande and Gacelas agricultural companies.

The Committee's recommendations

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

Allegations relating to excessive delays by
the authorities in processing complaints of
violation of trade union rights

(a) The Committee requests the Government, in order to consolidate the concrete improvements seen in the rate of completion of the administrative procedure in the case of violation of trade union rights, to take measures to guarantee that complaints submitted through administrative channels are fully processed within the deadline of two months established by the Constitutional Chamber.

(b) The Committee requests the Government to take measures to amend legislation so that the effects of anti-union acts confirmed by the administrative authority (in its investigations) are suspended until the judicial authority hands down the sentence or decision concluding the matter.

Allegations relating to the enterprise
Bananera Isla Grande S.A.

(c) Observing that in its investigation concerning the allegations relating to the enterprise Bananera Isla Grande S.A., the administrative authority found there to be harassment of workers to resign their membership of the trade union and considerable infringements of labour legislation, and that on 5 August 1998 the judicial authority ordered the reinstatement in their duties of the workers who had been dismissed up until then (five in all), the Committee must deplore these facts and asks the Government to send it the text of the final decision handed down by the judicial authority and to ensure compliance with the judicial decision that has already been handed down ordering the reinstatement of the five dismissed workers.

(d) The Committee requests the Government to forward its observations concerning the other allegations relating to the enterprise Bananera Isla Grande S.A.: dismissal on the grounds of "unjustified absence" of 90 workers affiliated to the trade union who had signed the list of claims, following an alleged operation targeting illegal immigrants carried out at the border between 17 and 19 August 1998 by the Civil Guard and immigration officials in the presence of enterprise representatives, using lists of trade union members; pressure placed on workers to join a solidarity association; proposals made to workers to sign a "direct arrangement" with the enterprise outside the trade union; and pressure placed on trade union members to sign blank pieces of paper.

Allegations relating to the enterprise PAIS S.A.

(e) The Committee requests the Government to forward to it the text of the decision rendered concerning the complaints submitted by the administrative authorities of harassment and threats addressed at the workers of PAIS S.A. for them to resign their membership of the trade union and of the wrongful retention of union dues. The Committee requests the Government to inform it of the administrative action taken in respect of the allegation that in the enterprise there are security doors and that security guards act aggressively to stop trade union leaders entering.

Allegations relating to the Chiriquí Land Company

(f) The Committee requests the Government to send the text of the decision handed down concerning the complaints submitted by the administrative authorities of the harassment of workers to resign their membership of the trade union and of the preferential treatment of members who join the solidarity association.

Recent allegations

(g) The Committee requests the Government to provide its observations on the latest IUF allegations concerning the anti-union dismissals in the Isla Grande and Gacelas agricultural companies.

Case No. 2010

Interim report

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

Allegations: Murder of a trade union official, quelling of protest
movements and intimidation campaign against other officials

448. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 2 February 1999. The Government sent its observations in communications dated 15, 23 and 25 March, 20 April and 13 May 1999.

449. Ecuador 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

450. In its communication of 2 February 1999, the International Confederation of Free Trade Unions (ICFTU) points out that it has been informed of the disappearance and subsequent murder of Saúl Cañar Pauta, national secretary of issues related to population and youth of the Ecuadorian Confederation of United Class Organizations of Workers (CEDOCUT).

451. According to the ICFTU, Cañar Pauta disappeared on 26 November 1998 in a district south of the city of Quito after having been arrested by eight unidentified men in two blue Toyota jeeps, identical to the vehicles used by the national army. These men, who referred to each other by their military grades, mistakenly connected him with the Group of Peoples' Forces (GCP), according to the complaint lodged on 1 December 1998 by the president of the CEDOCUT demanding that the authorities carry out an in-depth investigation to ascertain that Mr. Cañar was alive and that there should be an end to the death squads' actions against trade unionists and trade union officials.

452. The ICFTU adds that on 7 December the body of Mr. Cañar was found at Latacunga (100 km from Quito, on a bridge crossing the Yanayacu River); his body bore signs of torture and his hands were tied behind his back; some of his body had been burned and it appeared that he had been drowned. His death and the circumstances surrounding it are alarming indications of what a serious disintegration of political and social life might imply in Ecuador given that in addition to this crime, since the present administration took office, there have been disturbing signs of an authoritarian attitude towards social unrest and the legitimate demands of Ecuadorian social organizations to express their disagreement with the economic measures taken by the new Government.

453. The ICFTU points out that during the demonstrations, protest actions and the general strike held on 1 October 1998, declared by the trade union movement at the national level, about 300 workers were arrested (and subsequently released); there were several wounded and three workers killed as a result of the brutal way in which the national police and army quelled the demonstrations; furthermore, the police and army also placed troops in the indigenous communities and in major cities throughout the country. Immediately after the strike in October, the Ecuadorian Confederation of Free Organizations (CEOSL) complained that a campaign was being carried out to discredit and intimidate its president, José Chávez Chávez, who was threatened with legal action by the Minister of the Interior for declarations he made to the press on the eve of the national strike.

454. Furthermore, the CEOSL points out that according to the magazine "Caretas", published in Colombia, Carlos Castaño, the famous leader of the Colombian paramilitary, boasted in an interview he made to this magazine that he had trained 38 persons of Ecuadorian nationality in combat practices with a view to launching an offensive against the labour activists.

B. The Government's reply

455. In its communications dated 15, 23, 25 March and 13 May 1999, the Government states that given the importance it attached to the respect of human rights, it was grateful for the communication sent inasmuch as it had revealed the concern that Mr. Saúl Cañar Pauta's death had caused amongst various international organizations. In this respect, the Government states that it had immediately handed over an in-depth investigation of this case to the criminal investigation department -- headed by the Eighth Criminal Prosecutor of Pichincha -- and that the preliminary report of this investigation had, upon completion, been sent to the Second Magistrate of the Cotopaxi Criminal Court (the Government sent a copy of the report as an annex). For their part, civil groups set up a special committee called "Peace and Life", made up of representatives from human rights and workers' organizations, the Peoples' Attorney and civil groups, which conducted an investigation with their own sources (the Government encloses a preliminary report of this committee). Similarly, the Minister of the Interior took it upon herself to establish a dialogue with this committee so that as objective an analysis as possible might be made of the findings of the various sources looked into with a view to casting light on the truth.

456. The Government states that the most relevant conclusion of the committee set up by civil groups is that any possibility that the matter might have been a state crime has been definitely ruled out and that the State and Government were in no way responsible or involved; the Government feels that it is vital that those organizations concerned in this case should be informed of this matter. This murder has nothing whatsoever to do with the Ecuadorian State and the Government has decided to continue with inquiries in order to identify, locate and arrest those responsible for the crime, their accomplices and accessories after the fact and to punish the guilty parties. Similarly, the Government rejects the insinuations and assertions made by the complainant which cast a doubt on the legally established order in the State of Ecuador and considers them extremely irresponsible and totally unfounded; it points out that the false evidence given and the fanciful assumptions made by certain national trade union organizations lodging this complaint do not bear up in the slightest to the investigations officially carried out. According to the Government, trade union officers did not provide information during the investigation on the possible authors of the crime.

457. The Government states that it acts with total transparency because it believes in upholding respect for human rights in Ecuador in accordance with the international Conventions ratified by Ecuador and that it has sent the documents relating to the measures taken during the investigation.

458. In its communication of 20 April 1999, the Government states that a national strike was held on 1 October 1998 to protest against the economic adjustment measures it had taken, all of which led to acts of violence, vandalism, rampage and aggressions against persons who did not participate in the protests. Less than 100 persons were arrested in the whole country, not 300 as alleged by the complainant. Those arrested were individuals which incited the perpetration of acts of vandalism, destruction of vehicles, theft from individuals who were not taking part in the national strike, looting of all kinds of stores, and destruction of public and private property. Those detained, who were neither trade unionists nor workers, were released without any problem. All these measures of detention were taken with the sole purpose of avoiding a further aggravation of the protests.

459. The Government adds that Mr. Jorge Annibal Mena died in Trinitaria, a small town in the Province of Guyaquil. This is where social violence, caused by persons armed with all sorts of objects, erupted to a peak. All the residents of that sector, including those without any trade union link, participated spontaneously into the protests which culminated in acts of extreme violence and looting, during which the police and armed forces intervened to put an end to violations of public and private property. That is when a stray bullet mortally wounded Mr. Mena who was going home, as explained by his family; Mr. Mena was not taking part in the strike; his death was a most unfortunate accident, without any particular culprit. Mr. Javier Bone, who was not a union member, died in the City of Esmeraldas; he was mortally wounded during a violent protest, while in that same city, a bank was pilfered and a church stoned, which indicates the true nature of these protests; he was killed by a stray bullet, an unfortunate fatality during a situation of general violence. A third person died in the city of Manabi, when the hand grenade of a protester was confiscated, leading to the death of policeman José Bowen Menéndez. In these chaotic circumstances, trying to blame trade unionists or the Government for these most regrettable incidents does not serve any purpose. The Government adds in conclusion that the state of chaos and violence was neither initiated nor repressed by the authorities, which merely controlled it reasonably, while trying to protect the safety of persons, as well as public and private property. The Government attaches press clippings to support its statements.

The Committee's conclusions

460. The Committee notes with concern that in this complaint the complainant organization has alleged: (1) the disappearance and subsequent murder of Saúl Cañar Pauta, trade union official of the CEDOCUT; (2) the arrest of 300 workers (subsequently released), injuries sustained by a number of workers and three murders as a result of police and army repression during protest movements and the general strike on 1 October 1998; (3) the campaign to discriminate and intimidate the president of the CEOSL, threatened with legal proceedings by the Ministry of the Interior because of his statements to the national press on the eve of the abovementioned strike; and (4) the training by a well-known Colombian paramilitary leader of 38 Ecuadorian nationals in combat practices with a view to launching an offensive against labour activists, according to information contained in a magazine.

461. The Committee deeply regrets the murder of the trade union official Saúl Cañar Pauta, whose body bore signs of torture. The Committee notes the Government's statements to the effect that: (1) the criminal investigation department had carried out an in-depth investigation (submitted to the judicial authority) and that another parallel investigation had been carried out by a special committee of civil groups called "Peace and Life", which had completely ruled out any possibility that this crime might be attributed to the State or the Government; (2) the Government has taken the decision to identify, arrest and punish those responsible for this crime as well as their accomplices and accessories after the fact. The Committee requests the Government to do all that is necessary to ensure that this investigation is completed in the very near future. In these circumstances, the Committee requests the Government to keep it informed of developments in the judicial inquiries and trusts that these will quickly help to identify and punish those responsible for the murder.

462. As regards the allegations concerning the arrest of 300 workers, subsequently released, and the consequences (several people injured and three persons killed) of the repression by the police and armed forces during the protests and general strike of 1 October 1998, the Committee notes that, according to the Government: (1) less than 100 persons were arrested and none of them were trade union officials or workers, but rather individuals who had committed reprehensible acts, such as thefts, destruction of property, etc.; (2) the detainees have been released; and (3) of the three persons who died, one did not participate in the strike; the second one was not a worker and was killed, like the first one, by a stray bullet; and the third one died when a hand grenade was being confiscated from a protester, which caused the death of a policeman. The Committee deeply regrets the acts of violence and the ensuing deaths which resulted from the protests, and asks the Government to ensure that judicial investigations are commenced and to transmit the texts of the judgements which will be issued concerning these deaths.

463. The Committee regrets to note that the Government has failed to reply to the other allegations submitted by the complainant organization: (1) the campaign to discredit and intimidate the president of the CEOSL, threatened with legal proceedings by the Ministry of the Interior because of his statements to the national press on the eve of the abovementioned strikes; and (2) the training of 38 Ecuadorian nationals in combat practices by a well-known Colombian paramilitary leader with a view to launching an offensive against labour activists, according to information in a magazine. The Committee urges the Government to send it immediately its observations on these allegations.

The Committee's recommendations

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

(a) Regretting deeply the murder of the trade union official Saúl Cañar Pauta, the Committee requests the Government to keep it informed of developments in the judicial inquiries and trusts that those guilty of the murder will be quickly identified and punished.

(b) The Committee requests the Government to ensure that judicial investigations are commenced and to provide it with the texts of the judgements which will be issued concerning the deaths resulting from the events of 1 October 1998.

(c) The Committee urges the Government to communicate immediately its observations on the allegations to which it has failed to reply, i.e.: (1) the campaign to discredit and intimidate the president of the CEOSL, threatened with legal proceedings by the Minister of the Interior because of statements he made to the national press on the eve of the abovementioned strike; and (2) the training of 38 Ecuadorian nationals in combat practices by a well-known Colombian paramilitary leader with a view to launching an offensive against labour activists, according to information in a magazine.

Case No. 1888

Interim report

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

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

465. The Committee previously examined the substance of this case at its November 1997 and June 1998 meetings, presenting an interim report to the Governing Body in both instances [308th Report, paras. 327-347; 310th Report, paras. 368-392].

466. Since the most recent examination of this case, the complainants have submitted new allegations and additional information in communications dated 29 September and 20 October 1998. The Government has forwarded its further observations in communications dated 24 February and 5 March 1999. Translations of a number of the relevant court decisions and orders were forwarded by the Government in a communication of 31 March 1999.

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

A. Previous examination of the case

468. During the course of its previous examinations of this case, the Committee addressed very serious allegations of violations of freedom of association, in particular the Government's refusal to continue to recognize the Ethiopian Teachers' Association (ETA), the freezing of its assets and the killing, arrest, detention, harassment, dismissal and transfer of ETA members and officials. The Committee expressed its grave concern due to the extreme seriousness of the case and urged the Government to cooperate in furnishing the Committee with a detailed response to all the questions posed by the Committee.

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

(a) The Committee deeply deplores the fact that the Government has provided the Committee with only a general and partial response, refusing or neglecting to reply in detail to the specific questions posed by the Committee in its earlier recommendations, and strongly urges the Government to cooperate in furnishing the Committee with a detailed response to all the questions posed by the Committee.

(b) The Committee deeply regrets that the Government has not provided any information regarding the decision of the Court of Ethiopia concerning the recognition of ETA and its intention to comply with it, as previously requested; the Committee strongly urges the Government to comply with the decision of the Court, and unfreeze the organization's assets, and requests to be kept informed of action in this regard. The Committee further requests the Government to keep it apprised of the status of the appeal and to forward to it a copy of the decision once it has been rendered.

(c) The Committee again requests the Government to provide information regarding the arrests and detention of Dr. Woldesmiate, in particular the dates of the arrests, the date on which charges were laid, and the facts upon which the charges were based.

(d) Deploring the fact that Dr. Woldesmiate has been detained since May 1996, the Committee strongly urges the Government to ensure that he is either released, or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for his defence.

(e) Concerning the allegations of detention and harassment of ETA members and leaders, the Committee again considers that the Government's reply is unsatisfactory, being extremely general in nature. The Committee strongly urges the Government to ensure that any ETA members who are still being detained are released or brought to trial without delay before an impartial and independent judicial authority, enjoying all the guarantees necessary for their defence. Furthermore, the Committee requests the Government to take the necessary measures to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities.

(f) The Committee reiterates its request that the Government consult with ETA on the matter of the introduction of an evaluation system for teachers to ensure that it is not used as a pretext for anti-union discrimination.

(g) The Committee strongly urges the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits.

(h) Regarding the death of Mr. Assefa Maru, ETA Assistant Secretary for Development and Cooperation and Executive Council member, given the extremely serious nature of this allegation, the Committee must again strongly urge the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.

B. New allegations and additional information

470. In their communications of 29 September and 20 October 1998, the complainants indicate that the harassment, repression and intimidation of the ETA has continued and has in fact worsened since the Committee last examined the case. The complainants assert that the Government has taken further action to crush the legitimate ETA.

471. On 28 July 1998, at EI's second world congress, imprisoned ETA President, Dr. Taye Woldesmiate, and murdered Assistant Secretary, Assefa Maru, were awarded the Education International Human and Trade Union Rights Award. The award is presented to a union leader or activist who has undertaken courageous and exemplary action to defend and promote trade union rights.

472. The complainants state that on the same day, 28 July 1998, in Addis Ababa, Dr. Taye Woldesmiate was appearing once again in court, his case having dragged on at that point for two years without any decision being rendered. The most serious charges against him have been dismissed and the two main witnesses against him have retracted their evidence stating that it was fabricated under torture. Dr. Woldesmiate reported to the Court that the prison guards were harassing him and threatening to shoot him. The judge told him that the Court had no power to interfere in the internal administration of the Central Prison. When Dr. Woldesmiate demanded to know to whom he should appeal, the judge ordered the prison to keep him chained until 15 September 1998. When he returned to the Court on 15 September 1998, his case was adjourned because there was not a full bench; he, therefore, remained handcuffed 24 hours a day until 28 September 1998. The handcuffs were removed only once a day for toileting. The complainants state that it has been suggested to them that this punishment was in part a response by the courts to the fact that Dr. Woldesmiate had been awarded the EI Human and Trade Union Rights Award.

473. The complainants state further that on 20 July 1998, a week before Dr. Woldesmiate's court appearance, the ETA had also been in court. In December 1994, the Court had ruled that the Executive Committee headed by Dr. Woldesmiate was the legitimate leadership of ETA. The rival group immediately appealed and the Court then froze ETA's bank account. Over a period of time, police and security services seized all of ETA's regional offices and handed them over to the rival group. Each time the case has come before the Court, and despite ETA's pleas for a decision to be rendered, the case has been immediately adjourned. On 20 July 1998, the case was once again adjourned, this time until 20 March 1999. The case concerning ETA was then scheduled to be heard in the Federal Supreme Court on 5 April 1999. It is alleged that although the case was still pending, in May 1998, 1 million birr was withdrawn from the frozen bank account illegally and transferred to the rival organization.

474. The complainants explain that for the past 12 months, with EI's support, ETA has made a number of approaches to the Ethiopian Government, seeking a constructive working relationship. The Government, however, has not even acknowledged receipt of ETA's letters.

475. On Thursday, 13 August 1998, without a written court order, 30 people -- ten police officers, ten members of the security forces, and ten members of the government-sponsored rival organization -- occupied the ETA offices, sealed them and detained two ETA executive members, Abate Angore and Awoke Mulugeta, for seven hours. They told the tenants in the building that in future they were to pay rent to the Government and not to ETA.

476. The complainants state that the ETA executive members, showing tremendous courage and commitment, decided to proceed with an ETA/EI workshop scheduled for 20-24 August 1998, focusing on how ETA could best contribute to the development of quality education in Ethiopia. Over 100 ETA activists had arrived from all over the country and the workshop opened as planned. At 10 a.m., the security forces arrived, informed the gathering that the workshop would not be allowed to continue, and sealed the ETA hall where the meeting was being held. Having been denied access to ETA premises, the workshop was moved to a hotel where it was able to continue without further disruption, though in an atmosphere of considerable insecurity and fear.

477. On 17 September 1998, the police and security forces again appeared at the ETA branch office in Addis Ababa where three members of the ETA executive (Shimalis Zewdie, Acting General Secretary, Abate Angore and Awoke Mulugeta) were discussing how to keep the organization going without access to its premises. When they refused to hand over the property to the government-supported rival union, they were arrested and taken to police station No. 5. Although they have had two formal court appearances, no formal charges have yet been laid against them. During the first court appearance, the judge was in fact critical of the police actions; however, after consultation with the police and security forces, the judge failed to order their release and they remained in detention until 15 October 1998. Charges could still be laid against them. Shimalis Zewdie was unwell after he returned from the EI Congress in Washington DC where he accepted the EI Human and Trade Union Rights Award on behalf of Dr. Taye Woldesmiate and Mr. Assefa Maru. He was being treated for tuberculosis at the time he was arrested. He was held in a congested cell with between ten to 15 other prisoners and denied regular medication. He was too ill to appear in court the second time, and he was finding it difficult to eat the food his family was bringing him.

478. The complainants express concern that in their view there is no independent judiciary in Ethiopia. Court documents served on ETA simply summoned them to court on 10 November 1998 to justify why the property should not be handed to the rival organization. The documents mentioned nothing about immediate seizure nor about arresting the leaders of ETA.

479. During the week of 12 October 1998, people from the government-supported union broke into the sealed ETA offices and started going through papers and removing documents. All the locks were changed, thus denying ETA access while allowing the rival organization to enter.

480. The complainants conclude by asserting that this pattern of behaviour by the government authorities is clearly designed to eliminate any union that is not directly controlled by the Government or its supporters. They submit that this tactic has been successful against a number of other unions.

C. The Government's further reply

481. Concerning the charges against Dr. Taye Woldesmiate, the Government repeats that he was arrested for engaging, in collaboration with five other persons, in the establishment of a terrorist organization known as "the National Patriotic Front of Ethiopia", aimed at raising an armed rebellion against the existing regime, contrary to articles 32/1/A and 252/1/A of the Ethiopian Penal Code.

482. The Government states that Dr. Woldesmiate was arrested on 30 May 1996, and charges were brought against him on 1 August 1996. The facts upon which the charges were based were the following:

(i) forcefully demanding contributions to the organization;

(ii) organizing terrorist activities endangering the lives of people, in particular foreigners, with the intention of disturbing peace and order, thereby creating a false impression that no peace and stability exist in the country;

(iii) organizing robberies of selected economic establishments, particularly banks and transport enterprises;

(iv) recruiting people for the purpose of launching armed attacks;

(v) assassination attempts on selected government officials and supporters;

(vi) causing the offices of the United States Aid for International Development (US AID) to be bombarded in February 1995;

(vii) kidnapping two foreign nationals in September 1995, who were then released.

483. According to the Government, Dr. Woldesmiate has been ordered by the court to defend the first five counts noted above, the last two having been dismissed for lack of evidence. Dr. Woldesmiate is presently in the Addis Ababa Central Prison. He has been kept with a former high official of the present Government who has been tried for an offence. The Government again asserts that the charges brought against Dr. Woldesmiate were not related to his work for, or position with, ETA.

484. The Government claims that the new allegation that Dr. Woldesmiate was kept in chains from 28 July 1998 until 28 September 1998, is baseless, since the court made no such order, the accused was not chained and did not experience any mistreatment whatsoever. However, on the day he was brought before the High Court, the Government states that Dr. Woldesmiate became unruly and caused a disturbance, and would not pay attention to the court's direction to keep and maintain order. Consequently, the court had ordered that he be handcuffed if he did not maintain peace and order, but the accused was pardoned right away because he apologized for his misbehaviour.

485. With respect to the allegation of detention and harassment of ETA members and leaders, the Government again denies that anyone was detained for their membership in ETA or for other trade union activities, unless it was attached to the rule of law. The Government states that "very few" former ETA executive members were accused of establishing a clandestine organization and performing illegal activities. They were arrested under court warrant and brought before the Second Criminal Bench of the Federal High Court on 6 August 1996, upon the filing of charges by the Public Prosecutor's General Office. The Court, having considered the evidence of the prosecutor, has started hearing the defence. Some cases are still pending before the Court. The Government goes on to state that "in accordance with due process of law of the country, they usually receive a fair trial and are enjoying all guarantees necessary for their defence like other prisoners. They have the right to communicate with and be visited by their legal counsels".

486. Concerning the death of Mr. Assefa Maru, the Government states that he had refused to surrender to the police, and had died in the ensuing exchange of fire. The Government asserts that "the circumstances of this incident had been correctly established and made public at the time of the incident by the Government".

487. Concerning the allegation of interference with the ETA, the Government states that a dispute broke out between two executive committees of ETA, one led by Dr. Woldesmiate and the other by Mr. Yeshewas Admassu, each claiming to be the sole legal representative of the organization. As they were unable to resolve their differences, each committee filed a suit against the other in the Addis Ababa High Court. The Executive Committee led by Dr. Woldesmiate, in its statement of claim in civil suit No. 2586/85, requested recognition as the sole legal representative of ETA. The Executive Committee led by Mr. Yeshewas Admassu in civil suit No. 926/86 requested the court to order the transfer to it of any ETA property being held by the Executive Committee led by Dr. Woldesmiate. The court consolidated the two suits (civil suit No. 2586/85) and pronounced judgement on 12 December 1994. The Court in its judgement analysed the relevant legislation, including the Ethiopian Civil Code, and the ETA Rules of Association. The central aspect of the ruling reads as follows:

As the name itself tells, the Ethiopian Teachers' Association is an association established by teachers. It, therefore, logically follows that it is only members of the association who as per the Rules of the ETA could elect their representatives ... Both the Ethiopian Civil Code and the Rules of the ETA provide that no other third party except ETA's General Assembly could elect members of the Executive Committee. Hence the court has no jurisdiction to determine which one of the disputing executive committees is the legal representative of the ETA. The matter has rather to be left to the ETA's General Assembly's decision ...

488. The Government stresses that the court did not give legitimacy to either of the executive committees; it rather empowered the ETA's General Assembly to decide which of the executive committees was the legitimate one. On the basis of the Court's decision, the meeting of the General Assembly of the ETA was called on 18 October 1995. At that meeting, following a thorough discussion of the issues, the General Assembly decided that the Executive Commitee led by Dr. Woldesmiate could in no way be the legitimate representative of ETA. The General Assembly elected members of the Executive Committee, and the Government asserts that there were no obstacles created by the Government nor did it show any sign of favouritism. The Government contends that it has never interfered in the administration and functioning of ETA, and is in full compliance with the decision of the High Court and with ratified international labour Conventions.

489. Concerning the freezing of ETA's assets, the Government states that the measure was taken pursuant to a Federal High Court Order issued on 26 June 1998 in civil suit No. 119/90. In its decision, the court ordered the inventory and sealing of all ETA properties. The court also ordered the suspension of the transfer of the Toyota vehicle (plate No. 4-0704) to any third party. The newly elected Executive Commitee of the ETA was at the same time ordered to furnish security of 100,000 birr for any expenses or damage that the suspension might bring about. It was only after this security was furnished that the court order was released and implemented.

490. The Government contends that the allegation concerning the freezing of ETA's bank accounts by the Government is totally unfounded. The ETA bank account was frozen by a Federal First Instance Court Order of 22 July 1993 (civil suit No. 2461/85), which was withdrawn by a court order of the same court on 18 October 1993. The later court order was then transferred to the Commercial Bank of Ethiopia where ETA has its account. The Government states that it has not taken any measures to freeze the assets and bank accounts of ETA.

D. The Committee's conclusions

491. The Committee again recalls that this case addresses very serious allegations of violations of freedom of association, in particular, government interference with the functioning of ETA, and killing, arrest, detention, harassment, dismissal and transfer of ETA members and officials. The complainants contend that this pattern of repressive government action against the ETA has not only continued, but has worsened since the Committee last examined this case.

492. While acknowledging that the Government has supplied a more detailed reply than in the past concerning this case, the Committee must again deeply deplore the fact that the Government has still not provided all the information requested concerning the allegations.

493. Regarding the allegation of governmental interference in the administration and functioning of ETA, the Committee notes that particularly with respect to the Government's willingness to comply with the court decision concerning the recognition of ETA, the information supplied by the complainants and the Government is in direct conflict. The complainants state that the Court of Ethiopia in December 1994 ruled that the leaders elected and led by Dr. Woldesmiate were the legitimate leaders of ETA, and that the rival organization appealed this finding; however, a decision on the appeal has not yet been rendered since the matter has been adjourned a number of times. The Government in its most recent reply sets out in some detail the progression of the court cases concerning the leadership of ETA. According to the Government, while the Court indeed heard the case in December 1994, it took no decision as to which executive committee represented the legitimate leadership of ETA; rather it stated that the decision was to be taken by ETA's General Assembly. The Government makes no mention of an appeal of this ruling. The Government then claims that a General Assembly was called and the members of the Executive Committee duly elected thereby, which did not include those led by Dr. Woldesmiate. The complainants, however, stated that the leadership led by Dr. Woldesmiate had expressed their willingness to submit to new elections to confirm who the teachers wanted to represent them, but the rival group would not agree [see 308th Report, para. 330].

494. The Committee notes the Government's reply to the Committee's specific queries concerning the recognition of ETA and its intention to comply with the decision of the Court. The Committee notes further that according to the translation of the High Court decision of 12 December 1994 submitted by the Government, the Court indeed rejected the view of the Ministry of Internal Affairs that ETA, as led by Dr. Woldesmiate, had "lost its legality". However, as to which Executive Committee represented the legitimate leadership, the Court held that it did not have jurisdiction to decide the matter. It was stated in a dissenting opinion that the Court did in fact have jurisdiction. In the view of the Committee, the court decision of 12 December 1994 does not resolve the issue of the legitimate leadership of ETA for either the complainant or the Government. The Committee requests the Government to provide information concerning any appeal lodged in this matter, and to forward any relevant orders or judgements in this regard. The Committee would also request the Government to provide information concerning its role with respect to ETA prior to the court decision, since ETA has alleged that the court decision arose out of the Government effectively suspending ETA by administrative authority and transferring the membership fees to the rival group and freezing its accounts [see 308th Report, para. 330]. Any other information provided by either the Government or the complainant to shed light on this matter would also be appreciated.

495. Closely linked to the issue of the recognition of ETA are the allegations that ETA's bank accounts have been frozen, and assets and property misappropriated. Again, the Committee must note a conflict in the evidence, as well as lacunae in the information provided by the Government. According to the complainants, ETA's bank accounts were frozen not long after the issue of the leadership of ETA came before the courts in 1994. The new allegation relates to money having been withdrawn from a frozen account and transferred to the rival organization in May 1998. With respect to ETA's property, the complainants stated earlier that 134 ETA regional offices had been closed [see 308th Report, para. 331]. It is alleged that more recently, in August 1998, the ETA offices were occupied and sealed, and in October 1998, the locks were changed, allowing the rival organization, but not the complainants to have access. The ETA hall was also sealed, according to the complainants. Regarding the bank accounts, the Government states that while the bank account was frozen by court order in July 1993, the order was withdrawn in October 1993. Concerning the freezing of ETA's assets, the Government refers to recent court orders (June 1998) as justification for this action.

496. The Committee notes that the views of the complainants and the Government as to the status of ETA's bank accounts are diametrically opposed. The Government accepts, however, that the assets have been frozen, and refers to a recent court order to support this action. In this respect, the Committee recalls the importance of the right to protection of trade union funds and assets against intervention by the public authorities [see Resolution on trade union rights and their relation to civil liberties, 1970, International Labour Conference, para. 15]. Given that according to the Government, the court order is dated 26 June 1998, the Committee requests the Government to provide information as to its involvement in the freezing of the assets before that date. Noting from the documents provided by the Government that the court decision unfreezing ETA's bank account is dated 18 October 1993 yet the order transmitting this decision to the relevant bank is dated 6 August 1997, the Committee requests the Government to provide information concerning this delay. The Committee also requests that information be provided concerning the allegation that the Government has informed the tenants in the ETA building to submit their rent payments to the Government.

497. Regarding the allegations of the occupation and sealing of ETA offices and the sealing of the ETA hall during an ETA/EI workshop, the Committee recalls that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without a legal warrant to do so; the occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 175, 183]. The Committee urges the Government to respond to the specific allegations concerning the occupation and sealing of ETA premises. As to the allegation that the ETA/EI workshop was closed by the security forces, the Committee recalls that the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict the right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered [see Digest, op. cit., para. 130]. The Committee requests the Government to provide information concerning this allegation.

498. With respect to Dr. Taye Woldesmiate, the Government confirms that he was arrested in May 1996 and not charged until two months thereafter, and that he is still in prison. The Committee regrets that the Government does not make any reference to Dr. Woldesmiate's earlier arrest in May of 1995, as alleged by the complainants [see 308th Report, para. 332], and urges the Government to provide information as to the date of this arrest, when the charges were laid and the facts upon which the arrest and charges were based.

499. The Committee must deplore the fact that Dr. Woldesmiate was detained for two months before charges were laid and that he has remained in detention since May 1996, that is to say for three years, without being brought to trial. The Committee recalls that it is one of the fundamental rights of the individual that a detainee be brought without delay before the appropriate judge and, in the case of unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights [see Digest, op. cit., para. 94]. In addition, anyone who is arrested should be informed, at the time of the arrest, of the reasons for the arrest and should be promptly notified of any charges brought against her or him [see Digest, op. cit., para. 95]. By being detained for two months before charges were laid and spending three years in prison without being brought to trial, Dr. Woldesmiate has been denied all of these basic civil rights, which may contribute to developing an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities. The Committee, therefore, strongly urges the Government to take the measures necessary to secure the immediate release of Dr. Woldesmiate. The Committee requests the Government to inform it of action taken in this regard.

500. On the issue of the harassment and detention of ETA leaders and members, the Committee deeply regrets that the Government has provided a reply of a general nature to allegations that were very specific. The Government had been requested to provide information urgently on all those allegedly detained (see Annex 2), and has replied only that "very few" former ETA executive members were accused and arrested, and that some of the cases are still pending before the Court. The Committee must once again urgently request the Government to provide precise information concerning all those listed in Annex 2, as well as with respect to Abate Angore, Awoke Mulugeta and Shimalis Zewdie, as set out in the most recent allegations, in particular concerning the dates of detention, where they were detained, the reasons for the detention, whether any charges were laid and the specific charges, the conditions of detention, and the legal process that was followed and any decisions or orders arising therefrom. The Committee notes with concern that according to the most recent allegations, Abate Angore, Awoke Mulugeta and Shimalis Zewdie were detained for one month without any charges being laid, and that Mr. Shimalis Zewdie was denied appropriate medical attention. The Committee recalls that the arrest of trade unionists may create an atmosphere of intimidation and fear prejudicial to the normal development of trade union activities [see Digest, op. cit., para. 76]. The Committee urges the Government to take the necessary measures to ensure that all ETA members and leaders detained or charged are released and all charges withdrawn. Furthermore, the Committee requests the Government to take the necessary measures to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities.

501. Concerning the dismissal of ETA members and leaders (see Annex 1), the Committee regrets that the Government has not provided any further information, and again recalls that the dismissal of workers on the ground of membership in a trade union or due to trade union activities, clearly violates the principles of freedom of association [see Digest, op. cit., paras 690, 702]. The Committee, therefore, again strongly urges the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits, and requests the Government to keep the Committee informed in this regard.

502. The Committee regrets the sparseness of the information provided by the Government concerning the death of Mr. Assefa Maru, ETA Assistant Secretary for Development and Cooperation and Executive Council member, who was alleged to have been killed by police as he walked to work, unarmed and making no attempt to flee. The Government states only that he had refused to surrender to the police and died in the ensuing exchange of fire, and that "the circumstances of the incident had been correctly established and made public at the time of the incident by the Government". The Committee deplores that despite the extremely serious nature of the allegation, the Government has clearly indicated that it does not intend to establish an independent judicial inquiry into the killing. The Committee must, therefore, once again strongly urge the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators if any wrongdoing is found. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.

503. The Committee, recalling that the unilateral introduction of an evaluation system for teachers was alleged to have been a means of government harassment of ETA, giving rise to serious conflict, reiterates its request that the Government consult with ETA on this matter to ensure that it is not used as a pretext for anti-union discrimination. The Committee requests the Government to inform it of progress in this regard. The Committee also requests the Government to reply to the new allegation that the Government has refused ETA's attempts to establish a constructive working relationship with the Government.

The Committee's recommendations

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

(a) The Committee requests the Government to provide information concerning any appeal lodged with respect to the leadership of the ETA, and to forward any relevant orders or judgements in this regard. The Committee would also request the Government to provide information concerning its role with respect to ETA prior to the 1994 court decision. The Committee would also appreciate receiving any other information from either the Government or the complainant that could shed light on this matter.

(b) The Committee requests the Government to provide information as to its involvement in the freezing of ETA's assets prior to the June 1998 court order, and with respect to the delay between the judgement unfreezing ETA's bank account and the order transmitting this decision to the relevant bank. The Committee also requests the Government to provide information concerning the allegation that the Government has informed tenants in the ETA building to submit their rent payments to the Government.

(c) The Committee urges the Government to respond to the specific allegations concerning the occupation and sealing of ETA premises, and the closing by security forces of an ETA/EI workshop.

(d) With respect to Dr. Taye Woldesmiate, the Committee urges the Government to provide information as to his first arrest in May 1995, when the charges were laid and the facts upon which the arrest and charges were based.

(e) The Committee, deploring the fact that Dr. Woldesmiate was detained for two months before charges were laid and that he has remained in detention since May 1996 (that is, for three years) without being brought to trial, strongly urges the Government to take the measures necessary to secure his immediate release. The Committee requests the Government to inform it of action taken in this regard.

(f) On the issue of the harassment and detention of ETA leaders and members, the Committee, deeply regretting that the Government has provided a reply of a general nature to allegations that were very specific, must once again urgently request the Government to provide precise information concerning all those listed in Annex 2, as well as with respect to Abate Angore, Awoke Mulugeta and Shimalis Zewdie, in particular concerning the dates of detention, where they were detained, the reasons for the detention, whether any charges were laid and the specific charges, the conditions of detention, and the legal process that was followed and any decisions or orders arising therefrom.

(g) The Committee urges the Government to take the necessary measures to ensure that all the ETA members and leaders detained or charged are released and all charges withdrawn. Furthermore, the Committee requests the Government to take the necessary measures to ensure that in future workers are not subject to harassment or detention due to trade union membership or activities.

(h) Concerning the dismissal of ETA members and leaders (see Annex 1), the Committee again strongly urges the Government to take the necessary measures to ensure that the leaders and members of ETA who have been dismissed are reinstated in their jobs, if they so desire, with compensation for lost wages and benefits, and requests the Government to keep the Committee informed in this regard.

(i) The Committee, deploring that despite the extremely serious nature of the allegation, the Government has clearly indicated that it does not intend to establish an independent judicial inquiry into the killing of Mr. Assefa Maru, once again strongly urges the Government to ensure that an independent judicial inquiry is carried out immediately to determine the facts, establish responsibility, and appropriately punish the perpetrators if any wrongdoing is found. The Committee requests the Government to keep it informed regarding the establishment and outcome of the inquiry.

(j) The Committee reiterates its request that the Government consult with ETA on the unilateral introduction of an evaluation system for teachers to ensure that it is not used as a pretext for anti-union discrimination, and to inform it of progress in this regard. The Committee also requests the Government to reply to the new allegation that the Government has refused ETA's attempts to establish a constructive working relationship with the Government.

Annex 1

Members of ETA purportedly dismissed


Mulugheta W/Quirqos	Ghebayaw Niguse
Ketema Belachew	Ghetachew Feysia
Mesfin Mengistu	Asrat Woldeyes
Ayke Asfaw	Taye Mekuria
Yohanns Tola	Alemayehu Tefera
Alemayehu Melake	Alemayehu Haile
Abeta Anghure	Worku Tefera
Sira Bizu	Mekonnen Bishaw
Eyassu Albezo	Befekadu Degifie
Eshato Denege	Ayele Terfie
Tesegaye Hunde	Alemayehu Haile
Taye W/Semayat	Tsehay B. Sellassie
Ghemoraw Kasa	Assefaw Desta
Shimellis Zewde	Messay Kebede
Adinew Ghetanhun	Taddese Beyene
Aweqe Mulugheta	Seifu Metaferia
Aseffa Maru	Tesfaye Shewaye
Abate Anghure	Negatu Tesfaye
Hailu Araya	Aynalem Ashebir
Admassu Wassie	Berhanu Bankashie
Sebhat M/Hazen	Lealem Berhanu
Mekonnen Dilgassa	Huluanten Abate
Solomon Terfa	Mekuria Asffa
Tamiru Hawando	Feleke Desta
Fesseha Zewdie	Solomon Wondwossen
Dawit Zewdie	Shiferaw Agonafir
Ayele Tarekegn	Zerihun Teshome
Fekade Shewakena	Mendaralew Zewdie
Akilu Taddese	Meskerem Abebe

ETA Executive Committee members and regional officers, purportedly dismissed

Dr. Taye Woldesmiate -- President of ETA since April 1993

Mr. Abate Angorie, Members Afffairs Officer since January 1993, Addis Ababa, March 1993

Mr. Gemoraw Kassa, Secretary General of ETA, since July 1993, Addis Ababa

Mr. Shimelis Zawdie, Assistant Secretary General of ETA, since July 1993, Addis Ababa

Mr. Adinew Getahun, Administrative and Finance Officer, since July 1993, Addis Ababa

Mr. Awoke Mulugeta, Humanitarian Services and Supplies Officer, since July 1993, Addis Ababa

Mr. Asefa Maru, Cooperative Services Officer, since July 1993, Addis Ababa

Mr. Mulatu Mekonnen, Art and Research Department Officer, since July 1993, Addis Ababa (recently reinstated)

Mr. Muhammed Umer, South Wollo, February 1994

Mr. Fekadu Negash, South Gonder, June 1994

Mr. Alula Abegaz, North Wollo, September 1994

Annex 2

Members of ETA alleged to have been repeatedly detained
for their active participation in ETA


Ato Gennene H/Silasie	Ato Nikodmos Aramdie
Ato Moges Taddese	Ato Ambachew W/Tsadik
Ato Ashenafi Legebo	Ato Demeke Seifu
Ato Mohammed Ussien	Ato Wondimu Bekele
Ato Yibellae	Ato Sollomon Tesfaye
Ato Endalkachew Molla	Ato Zewdu Teshome
Ato Mohamed Umer	Ato Girma Tolossa
Ato Mekonnen Dawud	Ato Gemoraw Kassa
Ato Wogayehu Tessema	Ato Adinew Getahun
Ato Wollee Ahmed	Ato Shimelis Zewdie
Ato Yimam Ahmed	Ato Getachew Feyisa
Ato Sollomon H/Silsie	Ato Gebayaw Nigusie
Ato Sisay Mitiku	Ato Assefa Maru
Ato Limenih Nienie	Ato Ashenafi Mengistu
Ato Getinet Asnake	Ato Kebede Aga
Ato Befikadu Firdie	Ato Wubie Zewdie
Ato Baye Abera	Ato Asfaw Tessema
Ato Desta Titto	Ato Abate Angorie
Ato Woreyelew Demissie	Ato Ashetu Deneke
Ato Desie Keffele	Ato Bekele Mengistu
Ato Tarekegn Terefe	Ato Kinfie Abate
Ato G/Hiywot Gebru	Ato Tomas Egzikuret
Ato Fekade Nidda	Ato Sollmon Girma
Ato Mulugeta W/Kiros	Ato Fereja Feleke
Ato Mohamed Seid	Ato Demissie Tesfaye Haile
Ato Wondafrash Millon	Ato Gizachew Balcha
Ato Melessie Taye	W/t S/Wongel Belachew
Ato Ali Mengesha	Ato Yigzaw Mekonnen
Ato Getaneh Abebe	Ato Fekadu Negash
Ato Merkebu Taddesie	Ato Tesfaye Daba
Ato Mudisu Yasin	Ato Diana Kefeni
Ato Bekele Abay	Ato Berrecha Kumssa
Ato Hailu Derso	W/ro W/Yesus Mengesha
Ato Keteme Belachew	Ato Tamirat Daba
Ato Mesfin Mengistu	Ato Futa Sori
Ato Alemayehu Melake	Ato Legesse Lechissa
Ato Yohannes Tolla	Ato Admasu W/Yesus
Ato Aykie Asfaw	Ato Abbie Dessalegn
Ato Alemu W/Silasie	Ato Shukie Dessalegn
Ato Fikru Melka	W/ro Tewabech H/Michael
Ato Workneh Dinssa	Dr. Taye W/Semiat
Ato Assefa Geleta	Ato Alemu Desta Ketema

Case No. 1960

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

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

Allegations: Refusal to recognize trade unions;
acts of anti-union discrimination in the
context of collective disputes

505. The complaint is contained in a communication from the International Confederation of Free Trade Unions dated 3 April 1998. The Confederation submitted further allegations in a communication dated 16 July 1998. The Government sent its observations in communications dated 10 and 18 May, 28 July and 25 September 1998.

506. At its November 1998 meeting the Committee requested the complainant and the Government to provide more detailed observations and information to enable it to examine this case in full knowledge of all the facts [see 311th Report, para. 5]. The Government sent further information in a communication dated 29 January 1999. The complainant did not send the requested information.

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

A. The complainant's allegations

508. In its communication dated 3 April 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that the owners of the Mopá and Panorama banana plantations (in the Department of Izabal) have engaged in various forms of anti-union action against workers, the persons advocating the establishment of trade unions on those plantations and the Izabal Banana Workers' Union (SITRABI), which offered its support to the workers on those plantations. The ICFTU indicates that once the trade unions had been set up and the relevant documents had been submitted to the General Labour Inspectorate, the employers ordered in writing a work stoppage at the plantations, subsequently claiming that it had been an illegal strike. Also, they fraudulently presented documents maintaining that the workers from the plantations concerned had been dismissed one day prior to the formation of the trade unions.

509. According to the ICFTU, the action taken against the advocates of the new trade unions, the workers and the Izabal Banana Workers' Union (SITRABI), included instituting criminal proceedings and issuing warrants for the arrest of 19 workers belonging to the executive committee of the SITRABI, as well as establishing a military presence in the area.

510. The complainant adds that the biased judicial attitude consisting of accepting only the employers' allegations in support of their interests casts doubts on the conduct of the judiciary and its duty to guarantee the rule of law.

511. In its communication dated 16 July 1998, the ICFTU alleges that the Trade Union of Workers of the Port of Santo Tomás de Castilla has been facing serious problems. More specifically, the port inspector has taken repressive anti-union action aimed at destroying the trade union organization. He has instigated unjustified dismissals and has offered workers 500 quetzals each if they will leave the trade union and join a solidarity (solidarista) association. In addition, the sum of 2 million quetzals was offered for the establishment of a solidarity cooperative.

512. The ICFTU also refers to problems experienced by workers at the Alabama and Arizona plantations and explains that on 9 February 1998 they submitted a statement of claims through the labour court of Puerto Barrios, a procedure which according to law precludes any type of reprisals and requires court authorization for any dismissals. Despite this provision, on 12 and 13 February 1998 the enterprise dismissed over 500 workers. The ICFTU adds that when the workers initiated legal proceedings for reinstatement in their posts, their employers responded by starting criminal proceedings against them and posting groups of armed men to impede freedom of movement, to intimidate them so that they would give up their quest to establish their trade union and to stop them gaining any ground on work issues. This forced the workers to carry out a peaceful demonstration in March 1998 and to occupy the Guatemala-Puerto Barrios road, in order to demand that a high-level committee be set up to mediate a solution to the labour dispute (this committee was set up but the cases have not yet been resolved).

513. At present, the workers at the Alabama and Arizona plantations remain illegally dismissed in spite of the fact that by law the founders of a trade union enjoy irremovability and that this was the third attempt to set up a trade union at the Arizona plantation.

514. Furthermore, the ICFTU indicates that on 14 April 1998 over 120 workers from the El Paraíso plantation went on strike over the illegal dismissal of 16 workers who were trying to set up a trade union (on 6 April 1998 these 16 workers from the El Paraíso plantation had requested an injunction to stop the enterprise from dismissing workers; this injunction was issued).

515. The ICFTU also notes that on 14 April 1998 one of the members of the private security team belonging to the El Paraíso plantation, later identified as Mr. Abel Ipiña, fired at workers, wounding the worker Mr. Oscar René Soto in the upper chest.

516. The ICFTU states that the Izabal labour judge of first instance declared the strike held by workers from the Mopá and Panorama plantations to be illegal, refusing to review the evidence submitted by the workers to prove that they had been the victims of a lockout. This was the same judge who on 18 March 1998 decided in favour of the reinstatement of the workers dismissed from the Panorama plantation and recognized that their dismissal was the result of the establishment of a trade union.

B. The Government's reply

517. In its communications dated 10 and 18 May, 28 July and 25 September 1998, the Government states that conflicts had occurred at the Izabal banana plantations which involved the dismissal of 19 workers from the Mopá and Panorama plantations and 21 workers from the Alabama and Arizona plantations. The Government indicates that in spite of the efforts made by the Ministry of Labour the disputes at the Mopá and Panorama plantations could not be resolved, and once the labour administration channels had been exhausted the matter passed to the labour and then the criminal courts (the same thing happened at the Alabama and Arizona plantations). From the point of view of the workers, the conflict at the Mopá and Panorama plantations consists of a work stoppage by the employer, and from the point of the view of the enterprise, an illegal strike. The Government indicates that the courts of justice of first and second instance declared the strike to be illegal, which rules out a work stoppage by the employer. The Government indicates that the trade unions in these plantations were recognized by way of decisions dated 1 June 1998. It adds that at the same time that this labour dispute was taking place, the enterprise was also involved in a dispute with the SITRABI trade union whose members did not belong to the plantations mentioned.

518. The Government notes that in order to find a solution to the dispute, a considerable number of measures were taken by the authorities, including the President of the Republic and the Minister of Labour; a high-level committee made up of various ministers was also established. These measures began following complaints lodged by both workers and employers in March 1998.

519. It can be seen from the list of measures taken by the authorities to which the Government refers that the courts issued eviction orders for the Mopá and Panorama plantations which were subsequently temporarily suspended. The Government indicates that the government procurator's office is investigating the shots fired at Mr. Oscar René Soto and that a warrant has been issued for the arrest of the person presumed to be responsible. Furthermore, as regards the alleged issuing of warrants for the arrest of trade union leaders, it states that only two SITRABI trade union leaders were arrested and that this occurred by order of the judicial authority on 12 May 1998; they were later released.

C. The Government's further reply

520. In its communication dated 29 January 1999 the Government denies that repressive measures have been taken against trade unionists or to destroy the trade union organization at the Santo Tomás de Castilla National Port Enterprise. No massive dismissals have taken place and there have been no unjustified dismissals either. The enterprise had neither sufficient money to pay workers to renounce their trade union nor the intention of restricting workers' rights. No requests have been made to establish a solidarity association in the enterprise.

521. With respect to the Mopá, Panorama and Paraíso plantations, the Government explains that they are operated by independent producers to which the land was leased by the Bandegua enterprise. When the conflict began the workers at these plantations were not organized into trade unions. The conflict that arose in these plantations is not only of an industrial nature --criminal and commercial factors also come into play. The labour issues resulted in a series of judicial actions by both parties: the employer sought a declaration that the strike was illegal and the workers sought a declaration that there had been a lockout; the labour courts of first and second instance in turn declared the strike called by the workers to be illegal, these decisions are final and have left as groundless the workers' request that a lockout be declared. Other workers' organizations (not made up of workers from the plantations involved in the conflict but workers' trade union organizations from the enterprise that owned the land leased to the independent employers) carried out a variety of measures aimed at putting pressure on the employers and on Bandegua to accept their claims. Given this situation, Bandegua began civil judicial proceedings for the contracts of lease to be rescinded; this request was granted by the court, putting Bandegua into the possession of the plantations; this measure was subsequently revoked with the judge ordering the plantations to be returned to the independent producer. This demonstrates that the non-labour aspects of the conflict, i.e. the criminal and commercial factors, arose as a result of the actions of the abovementioned trade union groups, particularly the trade union SITRABI.

522. In spite of all the above and recognizing the importance and serious social and economic implications of the conflict, right from the start the Government became involved in trying to resolve it at the highest level. Measures taken include: (1) strengthening of the Puerto Barrios Labour Sub-inspectorate; (2) innumerable meetings held with representatives from both sides in the search for solutions; (3) creation of a high-level committee made up of various ministers of state which held several meetings with sectors involved in the problem; (4) a meeting held between the acting President of the Republic and a group of ministers to evaluate the situation, where the decision was taken to form a committee made up of the Deputy Ministers of the Interior and of Labour and the General Labour Inspector in order to verify the facts in situ: this committee visited the plantations involved in the conflict; (5) appointment of another committee specifically responsible for investigating staff conduct at the Puerto Barrios Sub-inspectorate, which resulted in the dismissal of staff from that office; (6) application by the Deputy Minister of Labour to the Government Procurator's Office to carry out an investigation into the events at the Paraíso plantation, which led to an arrest warrant being issued for Mr. Abel Ipiña; (7) ongoing communication and meetings with workers' representatives, the trade union confederations concerned, employers and their legal representatives, the chairman of the industrial committee of the Congress of the Republic, the President of the Supreme Court of Justice and other judicial authorities in order to seek negotiated solutions to the conflict; etc.

523. The Government also emphasizes that the workers' trade unions at the El Paraíso, Mopá and Panorama plantations were legally recognized and registered and attaches the corresponding documentation. Similarly, there was active and ongoing worker participation in the high-level committee convened by the Commissioner for Human Rights, on the request of the workers, with the participation of, inter alia, the Minister and Deputy Minister of the Interior; the head of the Government Procurator's Office, the secretary of the Supreme Court of Justice, the Minister and Deputy Minister of Labour, the General Labour Inspector and representatives from MINUGUA. The work of this committee culminated in a decision by the Commissioner for Human Rights indicating that as neither party demonstrated the will to negotiate it was impossible to pursue the mediation.

524. The Government adds that the problem at the El Paraíso plantation was resolved following the intervention of the Deputy Minister of the Interior on 14 May 1998 when an application for a writ of habeas corpus was made for the people inside the plantation, on the same date an agreement was concluded between the two groups of workers at the plantation, employment contracts were signed and work was resumed, which has continued uninterrupted ever since. It was at this plantation where the incident occurred in which the worker Mr. Soto was injured. As regards this matter: (1) the person allegedly responsible, Mr. Abel Ipiña, is still at large and it is rumoured that he fled to Honduras; (2) the worker Mr. Soto was only slightly injured and was discharged from hospital after just a few days; (3) according to accounts given at the plantation, AK-44 rifles were not used and, instead of an incident of trade union aggression, what occurred was in fact an argument between two individuals (Mr. Ipiña and Mr. Soto).

525. The Government also declares that Mr. Littman, the lessee of the Mopá and Panorama plantations, reached an understanding with Mr. Manuel Ayau, whereby Mr. Ayau would buy the best of the plantations; in order to do so Bandegua's consent as owner of the land was obtained and in principle an understanding was reached with the workers that the trade union and collective bargaining would be respected, on the premise that the resumption of work would be gradual due to the state of the plantations and the parties would agree to a "truce" for a number of years to promote the full recovery of the plantations. The problem is thus in the process of being solved.

526. The Government states that it has done its best within the sphere of its competence to mediate a solution to the problems mentioned in the complaint, but unfortunately the attitude of both parties has not always lent itself to achieving the desired negotiated solutions. Similarly, the Ministry of Labour has implemented: (1) the emerging employment programme to help the victims of Hurricane Mitch in the banana-producing region of Izabal; (2) part of the agenda of the first 100 days; and (3) the reconstruction programme. These measures have been taken to give work to the unemployed, providing them with food for their families.

D. The Committee's conclusions

527. The Committee observes that the allegations relate to: (1) collective disputes at the Mopá, Panorama, Alabama, Arizona and El Paraíso banana plantations (in the Department of Izabal) where workers tried to establish trade unions or submitted statements of claims, resulting in hundreds of dismissals, criminal proceedings being initiated by the parties (also against trade union leaders of the SITRABI), warrants for the arrest of trade unionists, orders for eviction from the plantations, the militarization of the area and shots fired at a worker by a member of a private security team at the El Paraíso plantation; and (2) unjustified dismissals at the port of Santo Tomás de Castilla and pressure applied to persuade workers to renounce the trade union and join a solidarity association. The Committee notes the Government's observations and observes that the complainant did not send the requested information.

528. As regards the disputes at the banana plantations, the Committee notes the Government's declarations and the numerous measures taken by the authorities to resolve these disputes. It notes with interest that the problem at the El Paraíso plantation was resolved following the intervention of the Deputy Minister of the Interior on 14 May 1998, with an agreement being concluded between the two groups of workers at the plantation, contracts of employment signed and work resumed. As regards the shots fired at the worker Oscar René Soto (El Paraíso plantation), the Committee notes the Government's statement that this related to an argument between individuals and not to trade union aggression, that Mr. Soto was only slightly injured and that an arrest warrant has been issued for the person responsible who it is rumoured has fled to Honduras. The Committee also notes that in the Mopá and Panorama plantations in principle an understanding has been reached with the workers to ensure respect for the trade union and collective bargaining, on the basis of which reinstatement will be gradual as a result of the state of the plantations, and that the parties have agreed to a "truce" for a number of years to promote the full recovery of the plantations (also damaged by Hurricane Mitch) and thus in the Government's view the problem is being solved. The Committee requests the Government to keep it informed in this respect.

529. Furthermore, the Committee notes with interest that the trade unions at the Mopá, Panorama and El Paraíso plantations have been recognized. Given that the Government has sent no information concerning the recognition of the trade unions at the Alabama and Arizona plantations, the Committee requests the Government to recognize them without delay and to keep it informed in this respect. Concerning the conflict in these two plantations and specifically the question of the alleged dismissal of over 500 workers and the alleged instituting of criminal proceedings by the employers, the Committee regrets that the complainant did not provide the requested information. It notes the mediation measures carried out by the authorities and requests the Government to keep it informed in this respect.

530. Moreover, with reference to the alleged criminal proceedings instituted and arrest warrants issued against 19 workers belonging to the executive committee of SITRABI, which according to the complainant occurred during the conflict at the Mopá and Panorama plantations, the Committee regrets that the complainant did not send the information requested and notes that, according to the Government, only two SITRABI trade union leaders were arrested (by court order), and were later released.

531. Lastly, as regards the allegations by the complainant organization concerning the dismissals without just cause at the port of Santo Tomás de Castilla and concerning alleged pressure put on workers to renounce the trade union and join a solidarity association, the Committee notes the Government's categoric denial of the allegations and its assertion that no solidarity associations have been established at the enterprise.

The Committee's recommendations

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

(a) The Committee requests the Government to keep it informed of developments relating to the understanding which appears to have been reached at the Mopá and Panorama plantations apparently ending the conflict that had occurred at both plantations.

(b) The Committee requests the Government to recognize the workers' unions at the Alabama and Arizona plantations without delay and to keep it informed in this respect.

(c) The Committee requests the Government to keep it informed about the results of the mediation measures taken by the authorities concerning the dismissal of workers from the Alabama and Arizona plantations and the legal action initiated by the employers.

Case No. 1970

Interim report

Complaints against the Government of Guatemala
presented by
-- the General Confederation of Workers of Guatemala (CGTG)
-- the Latin American Central of Workers (CLAT)
-- the World Confederation of Labour (WCL) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Murders, physical assaults, death threats, raids on the home and
attempted abduction of trade union officers and members -- anti-union
dismissals -- obstruction of collective bargaining -- requirement of approval
of collective agreements on working conditions

533. The complaints are contained in communications from the General Confederation of Workers of Guatemala (CGTG) dated 16 June and 11 July 1998 and the Latin American Central of Workers (CLAT) dated 9, 23 and 29 October 1998 and 10 February 1999. In a communication dated 14 September 1998, the World Confederation of Labour (WCL) supported the complaints in question. The International Confederation of Free Trade Unions (ICFTU) presented allegations in a communication dated 20 January 1999.

534. The Government sent its observations in communications dated 22 September 1998, and 29 January and 29 March 1999.

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

A. The complainants' allegations

536. In its communications dated 16 June and 11 July 1998, the General Confederation of Workers of Guatemala (CGTG) states that in the exercise of their trade union and labour rights, workers are subjected to mass dismissals, reprisals, intimidation, death threats, changes in their working conditions, isolation of unionized workers from non-unionized workers, non-observance of collective agreements and suppression of the most relevant clauses of collective agreements on conditions of work by the Ministry of Labour, which makes reservations in respect of them so that they are not complied with or applied.

537. The complainant organization alleges that many workers have been dismissed from numerous enterprises for having carried out trade union activities. Specifically, they are as follows:

Santa Anita farm. The Santa Anita farm is located in the San Miguel Pochuta municipality, department of Chimaltenango. The 40 unionized workers were dismissed on 28 October 1993. The dismissed workers brought an action for reinstatement before the competent court; four-and-a-half years later they have still not been reinstated. The administration of justice has obviously been delayed with malicious intent, given that the legal time limits have not been observed, the reinstatement order was not issued within 24 hours of the complaint having been examined by the court, and now that four-and-a-half years have elapsed the problem of dismissal has still not been resolved, and the workers are consequently unable to negotiate a collective labour agreement. Among the workers dismissed was the entire executive committee of the trade union.
La Patria y Anexo farm. Two trade union members were dismissed, one on 23 August 1995 and the other on 14 March 1996. Two months later the court ordered their reinstatement; to date, two years and nine months after the first worker was dismissed and two years and two months after the second was dismissed, neither of them has been reinstated owing to delayed application of the law.
El Arco farm. Upon presenting a list of demands through judicial channels in order to sign a collective agreement on working conditions, the three founder members of the Standing Committee of United Workers of the El Arco farm were immediately dismissed on 7 August 1994; now that three years and ten months have elapsed, a court order for their reinstatement dated 14 December 1994 has still not been executed. Seven months later, an appeal chamber upheld the reinstatement order. Moreover, the home of trade union officer Francisco Ajtzoc Ajcac was entered in an arbitrary and violent manner by the employer, who threw his household belongings out into the street, with the result that this worker had to spend 15 days out in the open.
San Rafael Panan farm and Ofelia farm. Fifteen workers were dismissed for attempting to solve their labour problems by means of collective bargaining, having presented a list of demands to their employer (the names of the trade union officers and members affected have been communicated by the complainant organization). A competent judge has already issued orders for their immediate reinstatement, but they have not been complied with to date. The trade union comprises workers from both farms and although its legal personality has been recognized, owing to the dismissal of at least 40 per cent of its members it is unable to carry out the functions of a trade union, i.e. the negotiation and conclusion of a collective agreement on working conditions. On 29 December 1997 unidentified armed men attempted to abduct the disputes secretary of the trade union, David Urízar Valdez, at his home; a complaint was lodged against this act with the Director-General of the National Police, the Office of the Attorney-General and the Office of the Human Rights Procurator, but no investigation results have been forthcoming either from the National Police or the Office of the Attorney-General. There are thus no genuine investigations for effective penal prosecution, a situation which reinforces the system of impunity and officially encourages anti-union acts.
Santa Lucía La Mayor farm. The seven founding members of the trade union organization (referred to by name by the CGTG) were dismissed in two groups, one on 22 May 1995 and the other in October 1996, for having presented a list of demands with a view to negotiating and concluding a collective agreement on working conditions. The procedure established by law was not complied with, and the workers accordingly filed for reinstatement; the judge issued an order for their reinstatement, which was challenged by the employer; ultimately an action for protection of constitutional rights was brought. The workers have still not been reinstated.
El Tesoro farm. Ten workers were dismissed on 2 April 1997 after presenting a draft list of demands with a view to negotiating and concluding a collective agreement on working conditions; now that a year has elapsed the workers have not been reinstated and are unable to engage in collective bargaining. An order for reinstatement was issued, which the employer challenged on grounds of nullity; a decision has yet to be taken on this by the Court of Appeals in Mazatenango, Suchitepequez.
La Argentina farm. The trade union was enormously weakened by the dismissal of 25 unionized workers on 28 November 1996; the reinstatement order was challenged on grounds of nullity; the challenge was upheld and as a result the reinstatement order was revoked and an appeal is now pending. The trade union presented a draft collective agreement but no direct bargaining has taken place to date on the agreement. Judging from his evasive behaviour and delaying tactics, the employer refuses entirely to negotiate the draft collective agreement.
San Carlos Miramar farm. After refusing to accept changes that had been made in their working conditions, 14 trade union members were dismissed, two of whom were members of the executive committee. The Labour and Social Insurance Court of First Instance of Chimaltenango upheld the employer's petition to revoke the employment contracts of the 14 workers. The trade union also presented a first draft of a collective agreement with a view to bargaining, but after two years have elapsed no negotiations have taken place.
Rene S.A. Food Products Enterprise. The enterprise dismissed two officers of the Trade Union of Workers of the Rene S.A. Food Products Enterprise, who were reinstated as a result of intervention by the General Labour Inspectorate, but the enterprise ordered that they be isolated and separated from their fellow workers and kept them confined to the security guards' lodge with the security officers, so that they were unable to use the sanitary facilities or the factory canteen. The employer's strategy was aimed at making the workers desperate, to get them to resign and weaken the trade union movement.
Copesgua S.A. and Pesca S.A. enterprises. In the middle of 1997, the enterprise took advantage of the "El Niño" phenomenon which slightly damaged the pier of the old port of Champerico, and applied to the local labour inspectorate of Quetzaltenango for authorization to suspend employment contracts, which was granted on condition that the enterprise did not carry out any definitive dismissals and that it resume work as soon as the pier was repaired. Nonetheless, the enterprise used this opportunity to dismiss over 700 workers, including all the members of the executive committee and consultative committee of the trade union, without following the established legal procedure. The enterprise subsequently resumed work under a new name, with a new non-unionized workforce hired as casual workers so that they would not be covered by the collective agreement in force at the time of this manoeuvre and in order to prevent these workers from subsequently organizing in trade unions and pushing for new collective bargaining.
Secretariat of Social Welfare of the President's Office. With the aim of improving their working conditions, the men and women employed by the Secretariat organized in a standing committee of workers in order to present their employer with a list of demands with a view to raising it to the status of a collective agreement, which they attempted to do through a labour court. However, the labour court neither examined the collective dispute nor ordered the precautions or issued the warnings or injunctions necessary to protect the right to organize and collective bargaining, but only issued a decree to the effect that the dispute would be registered only once the parties had provided proof of having exhausted the direct procedure. This situation made it possible for the executive secretary of the Secretariat of Social Welfare of the President's Office to design a "voluntary" retirement plan, with mass dismissals of those who did not accept the plan. To this end the administrative authorities of the Secretariat held the workers in a state of quasi-abduction, locking them up for over eight hours in rooms with two or three notaries in order to draw up retirement documents on pain of dismissal if they did not accept the voluntary retirement plan. In this way over 700 workers were dismissed, and their right to organize and bargain collectively was thus restricted.

538. The complainant organization also objects to Decree No. 35-96 to amend the Act respecting the unionization and regulation of strikes by state workers (Decree No. 71-86). According to the complainant organization, this Decree regulates matters relating to the organization and strikes of workers employed by the State and its autonomous bodies and, in addition to restricting the exercise of the right to strike by workers in various activities, section 2 lays down the obligation to engage in the direct procedure in order to negotiate collective and other agreements; in other words, before bringing them before the jurisdictional authority, the workers must address their complaints and petitions directly to the public administration, failing which the Act stipulates that the judge shall not handle the case unless it is proved that the direct procedure has been exhausted. This being so, once an employer becomes aware of the workers' intention to associate, organize or present demands, and in the absence of any warning or injunction against dismissing workers without the previous authorization of the competent judge, the employer only has to identify the workers behind the labour movement and proceed with their immediate dismissal, since they do not enjoy any legal protection.

539. The complainant organization also alleges that violations of the right to bargain collectively have taken place in the following enterprises or institutions:

Santo Tomás de Castilla National Port Enterprise. The Trade Union of Workers of the Santo Tomás de Castilla National Port Enterprise, located in the municipality of Puerto Barrios, department of Izabal, denounced the collective agreement in force and presented a new draft collective agreement for discussion and negotiation. In view of the employer's refusal to negotiate, however, a collective dispute was filed with the competent labour court, which the employer then challenged before the court; to date, after two years of judicial proceedings, no collective bargaining has taken place, neither has a conciliation tribunal been set up to continue the procedure in accordance with the law; the enterprise is unwilling to respect the right to collective bargaining.
Congress of the Republic of Guatemala. In 1995 the Trade Union of Workers of the Congress of the Republic presented the managing committee of this state body a draft collective agreement on working conditions for negotiation; several months passed before direct negotiation took place, in the course of which 22 clauses were approved, but when there was a change of deputies and of the managing committee of the Congress, the new deputies and managing committee decided to suspend the process of bargaining under way, going as far as to manipulate a group of workers, with whom they concluded a so-called collective agreement without involving the trade union, and with the approval of the General Labour Inspectorate of the Ministry of Labour and Social Insurance. The so-called agreement that has been approved is being used by the congress authorities to prevent further bargaining on the collective agreement referred to above. Nearly three years after the process was begun, it still has not been settled by the labour courts.
Municipality of Chiquimulilla, department of Escuintla. In the exercise of its right to negotiate the first collective agreement on working conditions with the above-mentioned municipality, the trade union presented a draft agreement and, faced with the mayor's refusal to engage in discussions and direct negotiations, the trade union filed an economic and social collective dispute with the competent labour court in order to continue the negotiation of the agreement. To date there is no indication that this agreement will be reached in the short term, since the head of the municipality has challenged the procedure by various means in order to prevent the workers from achieving their goals.
Camino Real Hotel. The Trade Union of Hotel, Restaurant and Allied Workers which is active in the Camino Real Hotel presented a draft collective agreement for the negotiation and conclusion of a new agreement in accordance with section 51(c), second paragraph, of the Labour Code. However, the enterprise challenged the procedure before the Ministry of Labour and Social Insurance, and the Vice-Minister of Labour and Social Insurance upheld the challenge, in favour of the employer; the trade union subsequently filed the dispute before the labour court in accordance with the law. Citing the decision of the Ministry of Labour, the Sixth Labour and Social Insurance Court declared the dispute inadmissible and ordered that the procedure be considered closed and the injunction lifted. In addition, the trade union officers are constantly harassed by the enterprise and accused of incompetence in order to discredit them with the members, and the general secretary of the trade union is currently in hospital after being stabbed by a suspicious stranger who did not steal anything from his victim.
Nueva California farm. The trade union presented a draft collective agreement to the employer, but two years later there are still no positive indications that it will be negotiated in the near future, in view of the employer's obstinate refusal to sit down to bargain with the trade union.

540. Lastly, the complainant organization objects to the arbitrary manner in which the Ministry of Labour and Social Insurance approves collective agreements on conditions of work. According to the CGTG, the Ministry of Labour and Social Insurance withholds approval from parts of the collective agreement and any economic and social benefits that have a financial impact on the employer, making reservations in respect of them and thereby rendering them non-existent. By distorting its nature and raison d'être, the Ministry of Labour and Social Insurance has thus turned into a real obstacle in the way of collective bargaining, particularly in the case of agreements reached by trade unions of workers employed by the State, its autonomous bodies and municipalities, such as the agreements of the municipality of Esquipulas, the municipality of Puerto Barrios, the Autonomous Sports Confederation of Guatemala and the Comptroller-General of the Nation.

541. In its communications dated 8 September, 9, 23 and 29 October 1998 and 10 February 1999, the Latin American Central of Workers (CLAT) alleges the following:

According to inquiries made by the assistant public prosecutor of the Office of the Attorney-General, head of agency No. 7, there are no records or files to indicate the status of the investigation of the following murders: Cesario Chanchavac (30 October 1992); Carlos Lijuc (12 June 1994); Manuel de Jesús Alonso (30 October 1994); Pablo A. Guerra (3 October 1995); José F. Vivas (5 January 1996); Carlos H. Solorzano G. (30 May 1996); Ismael Mérida M. (26 July 1996) and Luis A. Bravo P. (5 October 1996).
On Friday 2 October 1998, Sofía Miguelina Alvarez Rojas, an officer of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, was murdered at her home. In addition, death threats were received by Rolando Quinteros and Mario Garza, secretary-general and executive secretary of the same trade union.
On 17 October 1998, Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport, received a death threat from his employer in Colonia Jacarandas.
On 23 and 24 September 1998, Juan Gutiérrez García, an officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm, received a death threat. According to the CLAT, this trade union officer was dismissed for having set up a trade union, and unionized workers were isolated, harassed and pressured to withdraw from the organization, blacklists containing the names of unionized workers were distributed and two trade union members were threatened with death for having demanded that they be paid their wages in accordance with the law.
On 12 January 1999 Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC) was murdered in the departmental capital of Zacapa. Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramírez were also murdered on 28 January 1999. There is a list of persons who have received death threats, containing the names of the following workers: José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolario Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez. According to the CLAT, the United Nations Mission for the Verification of Human Rights in Guatemala (MINUGUA), referring to the situation of violation of human rights in Zacapa, stated that the verification recently carried out by MINUGUA reveals sufficient indications of participation of municipal officials in extrajudicial executions and other violations of human rights.
In the Santa Fe and La Palmera Farms (municipality of El Asintal), trade union officers and workers have been subjected to various forms of pressure (death threats, dismissals, etc.) for having set up a trade union and presented a statement of demands to the judicial authority.

542. In its communication dated 20 January 1999, the ICFTU alleges that the trade unionists Hugo Rolando Duarte and José Alfredo Chacón Ramírez were murdered in 1998 and that the trade union leader Manuel Morales Canales was murdered on 12 January 1999; these three men belonged to the Workers' Union of the Municipality of Zacapa.

B. The Government's reply

543. In its communication dated 22 September 1998, the Government stated the following:

Dismissals

El Arco, Santa Lucía La Mayor and La Argentina farms. These are cases which occurred several years before the present Government took office in January 1996, and it is therefore striking that it is only now that complaints are being made about them; the current administration's policy has been one of constant dialogue, various discussions have been held with trade union organizations and the above-mentioned cases were never mentioned. It is therefore surprising that a complaint is being made to the Committee on Freedom of Association before domestic procedures have been used. In any case, it may be inferred from the content of the complaint that the case was brought to the attention of the courts but unfortunately no evidence was given in support of this assertion or enabling a judgement to be made on the reasons why the judicial decisions, if they were indeed handed down, were not complied with.
Ofelia farm. According to the Government, the most outstanding aspect of this case is the complaint presented concerning the worker David Urízar, which, independently of what may have been done by other public authorities, was handled by the Vice-Minister of Labour. It appears that the employer obtained the authorization of the court to terminate his employment relationship, which it in fact did; as the worker was living in housing on the farm, he was requested to vacate it, which he has not yet done to date. The worker stated that on 29 December of the previous year there had been an attempt to abduct him on the orders of the owner of the farm. When inquiries were made other workers stated that they were not aware of what had happened, and the employer presented his passport showing that he had been abroad for the whole month of December and part of January.
El Tesoro farm. It appears from the complaint itself that this case is currently being handled by the courts, and is pending a decision. When the final decision is known it will be communicated to the Committee.
San Carlos Miramar farm. According to the Government, this case has already been settled by the courts, and an attempt is being made here to discuss judicial principles, which are certainly not a matter for the Committee on Freedom of Association.
Rene S.A. Food Products Enterprise. This case concerns events which occurred in previous years, and according to the complaint itself the intervention by the General Labour Inspectorate was timely and effective. The Government points out that the collective agreement on working conditions was discussed and approved on 16 April this year and that the General Labour Inspectorate has received no complaints of any kind recently.
Copesgua S.A. and Pesca S.A. enterprises. According to the Government, as a result of natural phenomena the port installations of Champerico sustained serious damage which made it impossible to work in them, with similar effects in the coastal area, and the enterprise therefore applied for authorization, in accordance with the law, for a total collective suspension of contracts of employment, since it was unable to continue its activities. This is thus a situation caused by natural phenomena. The Government is not aware that the same enterprise was converted into another, as the complaint asserts. According to the Zone Two local labour inspectorate, the employers have stated that they are willing to resume work once the situation has been normalized.
The Secretariat of Social Welfare of the President's Office. The Government states that under Government Agreement No. 818-97 of 27 November 1997, a temporary voluntary retirement programme was established by mutual consent. Those workers who wished to join the programme did so. Admittedly, in the course of applying the programme there had been a series of misunderstandings and disagreements with the senior official of the Secretariat. This was an undeniable fact. In order to resolve these disagreements, long before the complaint in question was presented, the Government decided to replace the Secretary, who is no longer employed in the Secretariat of Social Welfare or any other government agency. The current Secretary has adopted a stance of dialogue with the workers and it is with great satisfaction that it can now be said that the few problems which, as pointed out above, were caused by a single person have now subsided, and the atmosphere is now one of harmony and appropriate labour relations.

Legislation

Decree No. 35-96. This is a subject which has already been resolved by the ILO's supervisory bodies, which considered that this legislation was in accordance with the Conventions and Recommendations of the International Labour Organization, and one which moreover was examined and resolved by the Constitutional Court, and it is therefore pointless to continue referring to it.

Collective bargaining

Santo Tomás de Castilla National Port Enterprise. The Government points out that this allegation refers to the "employer's unwillingness to respect the right to collective bargaining", citing the fact that the employer has not availed himself of the procedural remedies offered by the law to claim his rights. This is a particular interpretation of the procedural behaviour of the opposite side, and cannot be used to justify a complaint such as this one. In any case, the situation noted in other replies to the allegations has again occurred here, namely this is a case which has been referred to the courts.
Congress of the Republic. The Government states that this complaint is pointless since, as is clear from the attached documentation and the complaint itself, a collective agreement on conditions of work has been discussed, negotiated and approved in this body, and is currently in force and, as far as is known, applied by both parties. In accordance with national legislation, it was approved by the General Labour Inspectorate, which confers full validity on it, and it can therefore be said that the problem referred to in the complaint does not exist.
Municipality of Chiquimulilla. The Government states that it is clear from the complaint that it consists of challenges having been filed, which is in conformity with the legislation in force, and, as the Committee on Freedom of Association will understand without further explanation, this cannot be seen as a violation of workers' rights. It is a matter of concern for the Government that in some instances the complaint is that the laws are not observed while in others it is that persons have availed themselves of legal means of airing their differences. Neither in Guatemala nor in any other country of the world can the act of going to court and availing oneself of legal remedies be a reason for complaint, and hence the complaint in question is entirely without justification.
Camino Real Hotel. According to the Government, the complainant organization is referring to a case which has already been settled by the courts, which upheld the decision taken by the ministerial office, so that this is only a matter of disagreement with the decision and not, as it is claimed, of deliberate or illegal impairment of workers' rights. What the case amounts to is that the collective agreement on conditions of work was denounced once the statutory time limit for doing so had elapsed, with the result that it was not considered to have been denounced, and this legal standpoint was upheld by the Court of Administrative Disputes. It is clear in this case that it is not the Ministry's or the Court's fault that the persons concerned denounced the agreement after the time limit; likewise, this situation, for which the persons concerned are entirely responsible, can in no case be considered as a violation of workers' rights.
Nueva California farm. This case has already been examined by the competent bodies of the ILO [see 307th Report, para. 279] and it is therefore inadmissible to refer to it here.

544. The Government concludes by making a number of general remarks on the case, stating that it is surprising that cases are brought before the International Labour Organization without having been referred to the Ministry itself, although they could have been. As pointed out above, the policy of the current administration has been one of open, frank and permanent dialogue, as may be attested by the trade union organizations.

545. In its communications dated 29 January and 29 March 1999, the Government states the following:

Murder of Sofía Miguelina Alvarez Rojas. This was an utterly regrettable occurrence; according to confidential information provided by the National Police which cannot be made public in order to avoid jeopardizing the investigation, the following persons are suspects: Sandra Patricia Mejía Araiz, Delfino de Jesús Monzón Santos and Abel de Jesús Osorio Rodríguez. The National Police has interviewed several persons, including the executive secretary of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, who stated that members of the trade union had been threatened by Sandra Patricia Mejía Araiz and her husband Justo Rufino Reyes Santos, while the general secretary of the union said that the suspects in the case are still Mr. and Mrs. Mejía Reyes, who had had a confrontation with the deceased and had signed a non-aggression pact in a court of the capital. From the investigation and statements made by witnesses it may be deduced that what in fact occurred was a dispute between the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport and the Unidad R.L. Cooperative over taxi stations at the airport and tourist services. To conclude, although it is not justifiable, this was a commercial dispute and not a labour or trade union issue, and it is obvious that trade union problems and activities normally occur between employers and workers, which rules out any possibility of placing this case in a trade union context, and we therefore request that it be closed.
Threats against Oswaldo Monzón Lima. The Public Prosecutor's Office of the Attorney-General of the Department of Escuintla is examining a complaint filed by José Oswaldo Monzón Lima on 21 October 1998 against Mario Ortiz Barranco for coercion and threats under No. 9858-98. On 11 November 1998 the case was referred to the First Criminal Court, which classified the act as an offence.
Murder of Luis Armando Bravo Pérez. This case is being processed by the Commission for Historical Clarification and has already been examined by the Committee on Freedom of Association.
Murder of Pablo Antonio Guerra Pérez. Pablo Antonio Guerra, a member of the consultative council of the Trade Union of Workers of the Municipality of Esquipulas, died on 3 October 1995 after being hit by a vehicle. The District Prosecutor's Office of the Attorney-General of the Department of Chiquimula is processing the case, registered under No. 1265-95, in which Max Leonardo Molina is accused of the crime of culpable homicide. Mr. Molina is free on bail on condition that he remain at the disposal of the trial judge. On 12 March 1996 the prosecutor petitioned the second court of first instance to dismiss the case as there were not sufficient grounds to open proceedings. On 13 March 1996 the judge turned down the petition of the Office of the Public Prosecutor, citing insufficient grounds to open proceedings. On 2 May 1996 a petition to begin proceedings was brought by the Office of the Attorney-General and an accusation brought against Max Raúl Leonardo Molina. On 31 May the accused was granted bail on condition that he remain at the disposal of the trial judge and the decision was taken to begin proceedings. On 9 June 1996 the defence petitioned for dismissal of the case on the grounds that it was an accident. The court declared that a decision would be taken on the petition of the defence when the full court met to examine the case concerning culpable homicide or accidental death. To date, a judicial decision is pending as to whether oral proceedings will be opened or the case will be dismissed, as culpability is involved.
Murder of Manuel de Jesús Alonso. In these proceedings, Manuel Paredes Chub, Orlando Cabrera Franco and David Pineda Acevedo were accused of planning the crime and Abelardo Cacao and Carlos Ical of carrying it out. On 10 May 1996 the second judge of the Criminal Court of First Instance ordered a stay of proceedings, and the Office of the Attorney-General was notified of this on 16 May 1996. Attention is drawn in this case to the fact that the judicial investigation has already been carried out and the case was therefore closed; moreover, it concerns an event which occurred two years before the present Government took office. Therefore, as there is no institutional responsibility, the case should be closed.
Death threats against Juan Gutiérrez García, officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm, and other members of the trade union. The Ministry of Labour and Social Insurance instituted proceedings in this case before the competent courts. The complaint was filed on 7 August 1998 against the legal representative of Agropecuaria Atitlán S.A. for violation of labour legislation and is pending a decision by the jurisdictional authority.

C. The Committee's conclusions

546. The Committee notes that the allegations of the complainant organizations in this case concern murders, physical assault, death threats, raids on homes and attempted abduction of trade union officers and members, as well as numerous anti-union dismissals and obstruction of the negotiation of collective labour agreements. The complainant organizations also object to a provision of Decree No. 35-96 concerning the regulation of strikes by state workers, as well as the practice of arbitrary approval of collective agreements on working conditions by the Ministry of Labour and Social Insurance.

547. First of all, the Committee observes that several times in its reply the Government cites the fact that some of the alleged acts occurred several years before the present Government took office and that there is therefore no "institutional responsibility" in this matter. In this respect, the Committee recalls that "faced with allegations against one government for violations of trade union rights, ... a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new Government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18].

Murders, physical assaults, death threats and
raids on the home and attempted abduction
of trade union officers and members

548. The Committee notes with concern that between the last months of 1998 and the first months of 1999 five trade union officers or members were murdered and more than ten trade union officers or members received death threats. The Committee profoundly deplores these acts and recalls that "freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed" [see Digest, op. cit., para. 46]. The Committee requests the Government to carry out the necessary inquiries without delay to identify and punish the guilty parties, and recalls that "the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights" [see Digest, op. cit., para. 55].

549. With regard to the allegation concerning the impossibility of determining whether judicial proceedings are under way concerning the murders of trade union members Cesario Chanchavac (30 October 1992), Carlos Lijuc (12 June 1994), Manuel de Jesús Alonso (30 October 1994), Pablo A. Guerra (3 October 1995), José F. Vivas (5 January 1996), Carlos H. Solorzano G. (30 May 1996), Ismael Mérida M. (26 July 1996) and Luis A. Bravo P. (5 October 1996), the Committee notes that the Government states that: (1) the case of Luis A. Bravo is being processed by the Commission for Historical Clarification; (2) Pablo A. Guerra died after being hit by a vehicle, the perpetrator of the homicide has been detained and the case is pending a judicial decision as to whether oral proceedings should be opened or the case should be dismissed, as culpability is involved; (3) in the case of Manuel de Jesús Alonso the judicial authorities ordered a stay of proceedings in May 1996. In this respect, the Committee regrets that the Government has not communicated information on the existence of judicial proceedings concerning the murders of trade union members Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solorzano and Ismael Mérida. In these circumstances, the Committee urges the Government to ensure that judicial inquiries are held into the murders in question without delay and to keep it informed in this regard, and of the inquiries under way into the murders of Luis A. Bravo and Pablo A. Guerra.

550. As regards the allegation concerning the murder of Sofía Miguelina Alvarez Rojas, an officer of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, as well as the death threats made against the general secretary and executive secretary of the trade union, Rolando Quinteros and Mario Garza, the Committee notes that the Government states that: (1) according to the National Police, it has been determined that there are three suspects in the case of the murder of the trade union officer; (2) it is to be deduced from the investigation and the statements of witnesses that what occurred was a dispute between the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport and the Unidad R.L. Cooperative over taxi stations in the airport; and (3) it is a commercial dispute and not a labour or trade union issue. In this respect, the Committee deplores the murder of the trade union officer in question and regrets the fact that the Government has not communicated its observations on the alleged death threats against the general secretary and the executive secretary of the trade union. In these circumstances, the Committee urges the Government to take the necessary measures without delay to carry out a judicial inquiry into these allegations concerning death threats and to keep it informed in this regard. In addition, bearing in mind the fact that one officer of the trade union in question has already been murdered, the Committee requests the Government to take steps to provide protection to officers Rolando Quinteros and Mario Garza.

551. As regards the allegation concerning death threats against Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport on 17 October 1998 by his employer in Colonia Jacarandas, the Committee notes that the Government states that the Office of the Public Prosecutor of the Attorney-General of the Department of Escuintla is handling the complaint filed by the trade union officer in question and that on 11 November 1998 the case was referred to the First Criminal Court which classified the act as an offence. The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings and that in the event that the death threats against Oswaldo Monzón Lima are found to have occurred, to take steps to provide adequate security for this trade union leader and to ensure that such acts do not recur in future.

552. As regards the allegation concerning the raid on the home and attempted abduction of David Urízar Valdez, disputes secretary of the Trade Union of Workers of the San Rafael Panan and Ofelia farms on 29 December 1997, the Committee notes that the Government states that: (1) the employer obtained the authorization to terminate the employment relationship of the trade union member in question and that since he was living in housing on the farm, he was requested to vacate it, which he has not done to date; and (2) the worker stated that on 29 December 1997 an attempt had been made to abduct him on the order of the owner of the farm, but in the course of the inquiries into this case the employer had presented his passport which showed that he had been abroad the entire month of December and part of January. In these circumstances, observing that the complainant organization has informed it that a complaint has been filed with the National Police, the Office of the Attorney-General and the Office of Human Rights of the Procurator, the Committee requests the Government to keep it informed of the outcome of the inquiries carried out by these institutions.

553. As regards the allegation concerning the death threats against Juan Gutiérrez García, an officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm and other members of the trade union organization for having demanded payment of their wages, the Committee notes that the Government states that the Ministry of Labour and Social Insurance instituted proceedings in this case before the competent courts on 7 August 1998 which are pending a decision by the jurisdictional authority. The Committee requests the Government to keep it informed of the outcome of the judicial inquiries under way.

554. In addition, the Committee observes that the Government has not sent observations on the allegations concerning: (1) municipality of Zacapa: the murders of Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC), on 12 January 1999, Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramírez, on 28 January 1999, and the death threats against José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolorio Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez; (2) Santa Fe and La Palmera farms: death threats against trade union officers for having presented a list of demands to the judicial authorities; (3) Camino Real Hotel: harassment by the management of the enterprise of trade union officers and physical assault (stabbing) of the general secretary of the trade union; and (4) El Arco farm: raid on the home of trade union officer Francisco Ajtzoc Ajcac by the employer. The Committee regrets that the Government has not communicated its observations in this respect. The Committee urges the Government to communicate its observations on these allegations without delay.

Anti-union dismissals

555. The Committee notes with concern the large number of allegations concerning dismissals and other acts of anti-union discrimination affecting numerous trade union officers, members and workers in the exercise of their trade union activities, as well as the fact that, according to the complainant, in many cases court orders for the reinstatement of trade union members are ignored. In this respect, the Committee emphasizes that "the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association" and that "no one should be subjected to anti-union discrimination because of his or her legitimate trade union activities and the remedy of reinstatement should be available to those who were victims of anti-union discrimination" [see Digest, op. cit., paras. 702 and 755].

556. The Committee observes that according to the allegations, dismissals often occur after trade union activities have been carried out (establishment of trade unions, presentation of lists of demands, etc.) and recalls that "the existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize" [see Digest, op. cit., para. 740]. The Committee accordingly emphasizes the need to take the necessary steps to strengthen protection against acts of anti-union discrimination so that workers' organizations do not run the risk of disappearing. In this respect, the Committee recalls that "since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts" [see Digest, op. cit., para. 700].

557. The Committee notes the allegations concerning: (1) the dismissal on 7 August 1994 of the three founders members of the Standing Committee of United Workers of the El Arco farm after they presented a list of demands through judicial channels in order to conclude a collective labour agreement and non-compliance with a court order for their reinstatement issued on 14 December 1994; (2) the dismissal on 22 May 1995 and in October 1996 of the seven founder members of the trade union organization in the Santa Lucía La Mayor farm after presenting a list of demands with a view to negotiating and concluding a collective agreement on working conditions (according to the complainant organization, the judicial authorities ordered the workers' reinstatement but the employer challenged this measure); and (3) the dismissal on 28 November 1996 of 25 members of the trade union in the La Argentina farm (according to the complainant organization a judicial appeal was filed in relation to the reinstatement of the dismissed workers). In this respect, the Committee notes that the Government states that these are cases which have been filed with the courts and that no proof has been provided of the fact that the judicial decisions referred to by the complainant organization were handed down and were not complied with. The Committee regrets that the Government has not communicated specific information on these allegations, which in some cases refer to proceedings initiated over four years ago. In these circumstances, the Committee urges the Government to verify the result of the judicial proceedings referred to and, if the orders for reinstatement of workers dismissed for their trade union activities referred to by the complainants are found to exist, to take the necessary steps to ensure that they are carried out immediately.

558. As regards the allegation concerning the dismissal on 2 April 1997 of ten workers employed in the El Tesoro farm after presenting a list of demands, the Committee notes that the Government states that this case is being handled by the courts, pending a decision. In this respect, the Committee hopes that the judicial authorities will hand down a decision in the near future and requests the Government to send it a copy of the decision as soon as it is issued and to ensure that it is implemented.

559. As regards the allegation concerning the dismissal of 14 trade union members for refusing to accept the changes imposed on their working conditions in the San Carlos Miramar farm and the impossibility of negotiating a draft collective agreement for the last two years, the Committee notes that the Government states that, as pointed out by the complainant organization, the case of the dismissals has already been settled by the judicial authorities, which upheld the employer's request to cancel the employment contracts of the four workers in question. In this respect, the Committee requests the Government to communicate its observations with regard to the impossibility of negotiating a draft collective agreement presented two years ago.

560. As regards the allegation concerning the dismissal of two officers of the trade union in the Rene S.A. Food Products Enterprise and their subsequent reinstatement as a result of the intervention of the General Labour Inspectorate, but with the enterprise's order to isolate them and separate them from their fellow workers, keeping them confined to the security guards' lodge, the Committee notes that the Government states that in this case the intervention by the General Labour Inspectorate was timely and effective, that a collective agreement on working conditions has been concluded and that no complaints of any kind have been received recently. In this respect, observing that the Government has not communicated specific information on the working conditions of the trade union officers who were reinstated, the Committee requests the Government to ensure that the two officers in question are not isolated or subjected to inhuman measures and to keep it informed in this regard.

561. As regards the allegation concerning the dismissal of more than 700 workers, including all the members of the executive committee and the consultative committee of the trade union of the Copesgua S.A. and Pesca S.A. enterprises following slight damage to the pier of the old port of Champerico, with the result that the employer applied for authorization to suspend contracts of employment, and its subsequent resumption of work under a new name and hiring of a non-unionized workforce, the Committee notes that the Government states that: (1) as a result of natural phenomena the port installations of Champerico had sustained serious damage which made it impossible to work there, but that the enterprise had, in accordance with the law, applied for authorization for a total collective suspension of contracts of employment since it was unable to continue its activities; (2) it is not aware that the enterprise was converted into a new enterprise; and (3) the enterprise has informed the Government that it is willing to resume work once the situation has been normalized. The Committee requests the Government to carry out an inquiry into the allegation to the effect that a new non-unionized workforce was hired and to keep it informed in this regard.

562. As regards the allegation concerning the design of a voluntary retirement plan and the threat of mass dismissals of those who did not accept the plan, after a standing committee of workers was set up in the Secretariat of Social Welfare of the President's Office in order to present a list of demands with a view to raising it to the status of a collective agreement, the Committee notes that the Government states that: (1) under Government Agreement No. 818-97 of 27 November 1997 a temporary voluntary retirement programme was established by mutual consent and that the workers wishing to adhere to the programme had done so; (2) in the course of applying the programme there had been a series of misunderstandings and disagreements with the senior official of the Secretariat, but the Government had replaced this person; and (3) the current Secretary had adopted a stance of dialogue with the workers and that the atmosphere was now one of harmony and appropriate labour relations. In this respect, the Committee hopes that in future when voluntary retirement programmes are carried out, the trade union organizations in the sector will be consulted.

563. As regards the allegations concerning: (1) the dismissal of 15 workers in the San Rafael Panan and Ofelia farms after presenting a list of demands and failure to comply with a court reinstatement order; (2) the dismissal on 28 October 1993 of the 40 unionized workers, including all the members of the executive committee of the trade union, in the Santa Anita farm; (3) the dismissals on 23 August 1995 and 14 March 1996 of two trade union members in the La Patria y Anexo farm and non-compliance with a court reinstatement order; (4) the dismissal of trade union officers and workers in the Santa Fe and La Palmera farms for having established a trade union and presented a list of demands to the judicial authority, the Committee regrets that the Government has not provided information on these allegations of anti-union discrimination -- some of which allegedly occurred over five years ago -- and urges it to send its observations as soon as possible.

Difficulties in and obstruction of negotiation
of collective agreements

564. As regards the allegation concerning the impossibility for the Trade Union of Workers of the Congress of the Republic to negotiate a draft collective agreement on conditions of work presented in 1995, a collective agreement having been concluded in the meantime without involving the trade union, the Committee notes that the Government states that an agreement on working conditions had been discussed, negotiated and approved in Congress and was now in force and applied by both parties. In this respect, the Committee observes that it is clear from the collective agreement attached by the Government to its reply that the parties to the agreement are "the legislative body of the Republic of Guatemala" and "the ad hoc workers' committee" set up solely to engage in the current round of collective bargaining and the workers of the legislative body. Noting that according to the complainant, the workers' trade union did not participate in the negotiation of the collective agreement, the Committee requests the Government to provide it with information concerning the representativeness of the trade union and the ad hoc workers' committee so that it will be able to examine this allegation in full knowledge of the facts.

565. As regards the allegations concerning the refusal to negotiate and obstruction of the negotiation of collective agreements on working conditions by filing challenges and other documents with the courts, on the part of the authorities of the municipality of Chiquimulilla, the Santo Tomás de Castilla National Port Enterprise, the Camino Real Hotel and the Nueva California farm, the Committee observes that the Government states the following: (1) in the case of the municipality of Chiquimulilla, the authorities filed challenges, acting in accordance with the legislation in force; (2) in the case of the Santo Tomás de Castilla National Port Enterprise, the authorities of the enterprise availed themselves of the legal remedies afforded by law; (3) in the case of the Camino Real Hotel, the collective agreement on working conditions was denounced after the time limit for doing so had elapsed, with the result that it was not considered to have been denounced, and a decision was issued to this effect by the Court of Administrative Disputes; and (4) in the case of the Nueva California farm, the case had already been examined by the Committee on Freedom of Association at its meeting in May 1997.

566. In this respect, the Committee recalls that "it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties" and that "the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided" [see Digest, op. cit., paras. 815 and 816]. In these circumstances, the Committee requests the Government to ensure that these principles are respected and that every effort is made to promote and encourage among employers' and workers' organizations the full development and use of procedures for voluntary negotiation, with a view to regulating conditions of employment by means of collective agreements.

Approval of collective agreements
on working conditions

567. As regards the allegation to the effect that the Ministry of Labour and Social Insurance withholds approval of any social and economic clauses of collective agreements which have a financial impact on employers, making reservations in respect of them and thereby rendering them non-existent (the complainant organization refers to the cases of the municipality of Esquipulas, the municipality of Puerto Barrios, the Autonomous Sports Confederation of Guatemala and the Comptroller-General of the Nation), the Committee regrets that the Government has not sent its observations on this matter and requests it to send them as soon as possible.

Decree No. 35-96 regulating strikes by state workers

568. As regards the CGTG's objection to the provision of the Decree in question which makes it compulsory to engage in the direct procedure for the negotiation of a collective agreement, so that workers must address their complaints and petitions directly to the public administration before bringing them before the judicial authorities, the Committee notes that the Government states that this subject has already been examined by the supervisory bodies of the ILO and that it was pointed out that the legislation was in conformity with ILO Conventions and Recommendations. In this respect, the Committee would recall that in its analysis of the application of Convention No. 98 by Guatemala, the Committee of Experts on the Application of Conventions and Recommendations examined the Decree in question and considered that "section 2(b) which provides that where proof of having exhausted direct means is not provided, there will be no follow-up to the settlement of the dispute in question, thereby obliging a judge ex officio to adopt the measures necessary for proving this state of affairs" does not violate the Convention [see Report III (Part 1A) of 1998, p. 239 of the English version]. In these circumstances, the Committee will not pursue its examination of this allegation.

The Committee's recommendations

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

(a) The Committee recalls that faced with allegations against one government for violations of trade union rights, a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor.

(b) As regards the alleged acts of violence, the Committee:

(i) urges the Government to ensure that judicial inquiries are carried out without delay into the murders of trade union members Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solorzano and Ismael Mérida and to keep it informed in this regard, and of the inquiries under way into the murders of trade union members Luis A. Bravo and Pablo A. Guerra;

(ii) urges the Government to take the necessary steps without delay to ensure that a judicial inquiry is carried out into the alleged death threats against the general secretary and executive secretary of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport, Rolando Quinteros and Mario Garza, and to keep it informed in this regard. In addition, bearing in mind the fact that an officer of the trade union in question has already been murdered, the Committee requests the Government to take steps to provide protection to officers Rolando Quinteros and Mario Garza;

(iii) requests the Government to keep it informed of the final outcome of the judicial proceedings concerning the death threats against Oswaldo Monzón Lima, secretary-general of the Trade Union of Pilots in Fuel and Allied Transport, by his employer in Colonia Jacarandas, and if the death threats are found to have taken place, to take steps to provide adequate security for this trade union leader and to ensure that such acts do not recur in future;

(iv) requests the Government to keep it informed of the outcome of the judicial proceedings under way concerning the death threats against Juan Gutiérrez García, officer of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá farm and other members of the trade union for having demanded payment of their wages;

(v) requests the Government to keep it informed of the outcome of inquiries carried out by the National Police, the Office of the Attorney-General and the Office of the Human Rights Procurator concerning the alleged raid on the home and attempted abduction of David Urízar Valdez;

(vi) urges the Government to communicate without delay its observations on the following allegations: (1) municipality of Zacapa: the murders of Robinson Manolo Morales Canales, organization secretary of the Trade Union of Workers of the Municipality of Zacapa (SINTRAMUZAC), on 12 January 1999, Hugo Rolando Duarte Cordón and José Alfredo Chacón Ramiréz on 28 January 1999, and the death threats against José Angel Urzúa, Maximiliano Alvarez Gonzaga, Elmer Salguero Garcíam, Herminio Franco Hernández, Everildo Revolorio Torres, Feliciano Izep Zuruy, José Domingo Guzmán and Zonia de Alvarez; (2) Santa Fe and La Palmera farms: death threats against officers of the trade union for having presented a list of demands to the judicial authorities; (3) Camino Real Hotel: harassment of trade union officers by the enterprise and physical assault (stabbing) of the secretary-general of the trade union; and (4) El Arco farm: raid on the home of trade union officer Francisco Ajtzoc Ajcac by the employer.

(c) As regards the alleged acts of anti-union discrimination and other matters, the Committee:

(i) urges the Government to verify the result of the judicial proceedings concerning: (1) the dismissal on 7 August 1994 of the three founder members of the Standing Committee of United Workers of the El Arco farm after presenting a list of demands to the judicial authorities with the aim of concluding a collective agreement and non-compliance with a court reinstatement order issued on 14 December 1994; (2) the dismissal on 22 May 1995 and in October 1996 of the seven founder members of the trade union organization in the Santa Lucía La Mayor farm after presenting a list of demands with the aim of negotiating and concluding a collective agreement on working conditions (according to the complainant organization, the judicial authorities ordered the workers' reinstatement but the employer challenged this measure); and (3) the dismissal on 28 November 1996 of 25 members of the trade union in the La Argentina farm (according to the complainant organization an appeal has been lodged with the courts in relation to the reinstatement of the dismissed workers), and, if the court orders for the reinstatement of workers dismissed for their trade union activities referred to by the complainants are found to exist, requests the Government to take the necessary steps to ensure that they are carried out immediately;

(ii) hopes that the judicial authorities will hand down a decision in the near future concerning the dismissal on 2 April 1997 of ten workers of the El Tesoro farm after presenting a draft list of demands, and requests the Government to send it a copy of the decision as soon as it is issued and to ensure that it is implemented;

(iii) requests the Government to send its observations concerning the impossibility of negotiating a draft collective agreement presented two years ago in the San Carlos Miramar farm;

(iv) requests the Government to ensure that the two trade union officers reinstated in the Rene S.A. Food Products Enterprise are not isolated or subjected to inhuman measures; the Committee requests the Government to keep it informed in this regard;

(v) requests the Government to carry out inquiries into the allegation concerning the recruitment of a new non-unionized workforce in the Copesgua S.A. and Pesca S.A. enterprise following the total collective suspension of contracts of employment;

(vi) hopes that in future, when voluntary retirement programmes such as the one carried out in the Secretariat of Social Welfare of the President's Office are implemented, the trade union organizations in the sector will be consulted;

(vii) urges the Government to send its observations on the allegations concerning: (1) the dismissal of 15 workers in the San Rafael Panan and Ofelia farms after presenting a list of demands and non-compliance with a court reinstatement order; (2) the dismissal on 28 October 1993 of the 40 unionized workers, including all the members of the executive committee of the trade union, in the Santa Anita farm; (3) the dismissal on 23 August 1995 and on 14 March 1996 of two trade union members in the La Patria y Anexo farm and non-compliance with a court reinstatement order; (4) the dismissal of trade union officers and workers in the Santa Fe and La Palmera farms for having established a trade union and presented a list of demands to the judicial authority; the Committee regrets that the Government has not forwarded its observations although some of the allegations relate to events that occurred many years ago;

(viii) as regards the allegation concerning the impossibility for the Trade Union of Workers of the Congress of the Republic to negotiate a draft collective agreement on conditions of work presented in 1995, a collective agreement having been concluded in the meantime without involving the trade union, noting that according to the complainant, the workers' trade union did not participate in the negotiation of the collective agreement, the Committee requests the Government to provide it with information concerning the representativeness of the trade union and the ad hoc workers' committee so that it will be able to examine this allegation in full knowledge of the facts;

(ix) with regard to the allegations concerning refusal to negotiate and obstruction of negotiation of collective agreements on working conditions by filing challenges and other documents with the courts, on the part of the authorities of the municipality of Chiquimulilla, the Santo Tomás de Castilla National Port Enterprise, the Camino Real Hotel and the Nueva California farm, recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties, and that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided, and requests the Government to ensure that these principles are respected and that every effort is made to encourage and promote among employers' and workers' organizations the full development and use of voluntary bargaining procedures, with a view to regulating conditions of employment by means of collective agreements; and

(x) requests the Government to send its observations as soon as possible concerning the allegation to the effect that the Ministry of Labour and Social Insurance withholds approval of all economic and social benefits clauses of collective agreements which have a financial impact on employers, making reservations in respect of them and thereby rendering them non-existent.

Case No. 1773

Interim report

Complaint against the Government of Indonesia
presented by
-- the International Confederation of Free Trade Unions (ICFTU)
-- the World Confederation of Labour (WCL)
-- the Serikat Buruh Sejahtera (SBSI) and
-- the International Union of Food, Agricultural, Hotel, Restaurant,
Catering, Tobacco and Allied Workers' Associations (IUF)

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

570. The Committee examined this case at its meetings in March 1995 [see 297th Report, paras. 484-537, approved by the Governing Body at its 262nd Session (March-April 1995)], March 1996 [see 302nd Report, paras. 447-479, approved by the Governing Body at its 265th Session (March 1996)], November 1996 [see 305th Report, paras. 327-371, approved by the Governing Body at its 267th Session (November 1996)], November 1997 [see 308th Report, paras. 404-450, approved by the Governing Body at its 270th Session (November 1997)], and May 1998 [see 310th Report, paras. 432-473, approved by the Governing Body at its 272nd Session (June 1998)], during which it drew up interim conclusions.

571. The Serikat Buruh Sejahtera (SBSI) presented additional information in a communication dated 26 August 1998. The World Confederation of Labour (WCL) did the same in a communication dated 26 February 1999.

572. The Government furnished its observations in communications dated 28 January and 11 May 1999.

573. Indonesia ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) in June 1998. It has also ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

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

575. The Committee had, however, noted that certain positive steps had been taken by the Indonesian authorities with regard to freedom of association. The seriousness of the renewed allegations had nevertheless led it to believe that the general situation of workers in Indonesia was still characterized by serious infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.

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

(a) While noting with interest that certain positive steps have recently been taken by the Indonesian authorities, the Committee is still deeply concerned that the situation of workers in Indonesia remains characterized by serious infringements of basic human and trade union rights and violations of freedom of association principles in law and in practice.

(b) The Committee recalls that Indonesian legislation, which imposes a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprises requirements that are so stringent as to constitute a major limitation to freedom of association and collective bargaining. The Committee would therefore once again urge the Government to eliminate such impediments (such as section 2(a), (b) and (c) of Ministerial Regulation No. PER-03/MEN/1993) so as to ensure that the right of workers to organize and bargain collectively is fully recognized in law and in practice and to keep it informed in this respect.

(c) As regards the specific case of the SBSI, the Committee once again urges the Government to take appropriate steps to ensure that it is granted registration without any further delay so as to enable it to exercise legitimate trade union activities. It requests the Government to provide information on any progress made in this regard.

(d) The Committee urges the Government to ensure that the 16 workers who were dismissed from the Southern Cross Textile Industry in April 1993 are reinstated in their jobs or similar alternative jobs, if they so wish, and if this is not possible due to the time that has lapsed since the dismissals took place, to ensure that they receive full compensation. The Committee requests the Government to keep it informed in this respect.

(e) The Committee urges the Government to provide without delay information on: (i) Messrs. Mohammad Ali (PT Perindoni) and Mulyadi, (PT Ganda Seribu) who were allegedly detained in connection with the April 1994 events in Medan; and (ii) the outcome of Messrs. Icang's and Suryandi's trials. The Committee requests the Government to keep it informed in this regard.

(f) The Committee urges the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah, a labour activist, which occurred over five years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.

(g) Recalling the importance of the principle of a prompt and fair trial by an independent and impartial judiciary, and believing that under the cover of allegations of subversive activities, the charges brought and the measures taken against Mr. Pakpahan are linked to his trade union activities, the Committee once again urges the Government to do everything in its power to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan and the July 1996 events in Jakarta. The Committee further calls on the Government to ensure that Mr. Pakpahan can exercise freely his legitimate trade union activities. The Committee also requests the Government to drop any charges maintained against other SBSI leaders and activists. The Committee requests the Government to provide information in this respect as a matter of urgency.

(h) The Committee once again urges the Government to provide information on: (i) nine officers of the SBSI's Riau Branch detained in early August 1996 and if it appears that they are still under custody to take the necessary measures for their immediate release; (ii) Messrs. Rekson Silaban, Director research, Santosa, region coordinator, Mehbob, staff member of the Legal Aid Institution, all SBSI officers who were interrogated and charged to have been masterminds behind the events of July 1996 and to take the necessary measures to have the charges dropped without delay; and (iii) all anti-union measures against SBSI members and officers following the July 1996 events, including their arrest and interrogation as well as charges brought against them.

(i) The Committee once again urges the Government to provide information on the situation of Ms. Dita Sari and Mr. Coen Pontoh, two independent union officials, who were allegedly arrested and imprisoned further to their participation in industrial action, and to take the appropriate measures to ensure their immediate release if they are still imprisoned.

(j) The Committee once again calls on the Government to provide information on the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Indonesia (PT PSI) in Medan on 11 July 1997 on account of their SBSI membership. It urges the Government to take the necessary steps to ensure that these 18 workers are duly reinstated if they are indeed members of the SBSI.

(k) The Committee requests the Government to provide information without delay on: (i) the alleged detention on 19 September 1997 of two IUF officials; and (ii) the alleged arrest and detention of eight SBSI leaders and activists on 8, 9 and 10 March 1998, respectively.

(l) In order to pronounce itself on the matter in full knowledge of all the facts, the Committee requests the SBSI to provide complementary information on: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for the Medan and Binjai branches.

(m) Noting with interest that Mr. Muchtar Pakpahan, President of the SBSI, was released from prison on 25 May 1998, the Committee requests the Government to provide the names of all other SBSI leaders and activists who have been released.

(n) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.

(o) Noting that issues relating to the right to organize of workers will be regulated further through the enactment of new legal provisions under the terms of the new Law on Manpower Affairs, the Committee would suggest that the Government consider availing itself of the technical assistance of the ILO to assist it in ensuring that draft labour legislation fully complies with freedom of association principles.

(p) The Committee requests the Government to ensure that the recent steps taken by it to release certain trade union leaders and activists will be but one of a series of measures taken in the future which will contribute to the positive development of the trade union situation in Indonesia and to the full respect of freedom of association principles.

B. The complainants' additional information

577. In its communication of 26 August 1998, the SBSI provides additional information on the following allegations: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for Medan and Binjai branches. The SBSI states that the above cases have been resolved due to the widespread reform movement (reformasi) which first gained ground in Indonesia in June 1998. As a result, the above allegations should no longer be considered as outstanding.

578. In its communication dated 26 February 1999, the WCL states that since the freedom of Muchtar Pakpahan and other leaders of the SBSI in May 1998, some progress has been made in respect of trade union rights in Indonesia. However, the WCL and its affiliate the SBSI, remain preoccupied by the violation of trade union rights in a number of areas. These areas of concern relate to the continual interference of the military in labour disputes, the lengthy registration process, the exercise by civil servants of their trade union rights and the continuing detention of Dita Sari.

579. The WCL contends that despite the release of key trade union leaders, the ratification of ILO Convention No. 87 and the democratization process taking place, the military's role in industrial relations has not changed. The following few cases illustrate this continuing trend. For example, in PT Indosentral Megah Garmen in Bekasi (West Java), a labour dispute broke out in February 1999 due to the closure of the company. Management was not willing to give severance pay to workers in conformity with Indonesian labour legislation. After negotiations were called to solve the problem, the military were invited to take part in the negotiations between management and workers. The intimidating presence of the military created a situation in which no solution was found to the dispute. When workers decided to call a strike after the failure of negotiations, the military were once again called in to intervene in the strike action. Moreover, during the month of February 1999 in PT Gajah Tunggal (Tangerang, West Java), management attempted to restrict the right of workers to organize themselves under the umbrella of the SBSI. Workers who therefore declared their membership of SBSI were dismissed from the company. Management then followed up by appointing the production manager of the plant as head of the FSPSI (the government-controlled union). In the ensuing negotiations between the SBSI delegation and the management, plain-clothes military intelligence officers were invited to take part in the meeting. The WCL believes that the involvement of the military in industrial relations is contrary to trade union rights as simple labour disputes take on the character of national security concerns. Furthermore, the involvement and very presence of the military in discussions between social partners is tantamount to interference in trade union affairs and intimidation of trade unionists in the legitimate exercise of their mandate.

580. With regard to the registration process of unions the WCL indicates that some progress has been made in the area of registration of independent trade unions at the national level. However, both the WCL and the SBSI have major concerns regarding the length of the registration process and the actual registration of local unions at plant level. Regarding the length of the registration process, the experience of the SBSI local unions has been that it has been excessively long and full of obstacles. According to Ministerial Decree No. 05/1998, the official answer from the Indonesian authorities relating to registration should take place within 14 days. Within this period, the union requesting registration is either given a positive or negative answer. The experience with the SBSI's local unions has been that requests for registration have taken longer than 14 days and even in some cases are still pending. For instance, the registration of local SBSI unions in Bandar Lampung (South Sumatra) has only recently been resolved. These requests for registration took place in companies such as PT Sinar Laut (an overland trucking company) and PT Andatu Lestari Plywood (a plywood manufacturer in Bandar Lampung). The local Manpower Ministry in the Lampung region not only delayed beyond the 14-day period but also placed several obstacles (including refusal) in the path of the SBSI before the registration of the SBSI unions was allowed. In Jawa Timur in East Java, there is still an ongoing struggle by the local SBSI unions to obtain their rightful registration. For instance, at PT Surya Amam Tunggal, a shrimp export company at Sidoarjo, management is still refusing to allow the workers the right to register with the SBSI on the grounds that management had to give its consent before workers could be allowed to register with the SBSI. The case is still pending. There are therefore several impediments put in the way of the SBSI in the registration of its local unions by both the Manpower Ministry and local management of plants.

581. Furthermore, the WCL expresses concern about the legislation and practice dealing with the exercise of the right to organize of civil servants. Following the ratification of Convention No. 87, the Government declared that public servants were free from their obligations to be members of KORPRI, the official organization set up by the Government for civil servants. They could therefore join the organization of their own choosing. However, the legislation concerning public servants which denied them this right to organize, is still in force. The resulting situation is that not only are public servants confused about what exactly their rights are, but more importantly, public servants in a number of regions are being denied their right to organize. This is for instance the case in Sidoarjo (East Java) where no teachers' unions have been allowed to operate in the schools. Public servants, including public schoolteachers are barred from joining unions of their own choosing in both law and practice. However, like all other workers, public servants should have the right to organize and form unions of their own choosing without previous authorization.

582. Finally, the WCL draws attention to the continual detention of Dita Sari. The unconditional freedom of all trade union leaders is necessary if Indonesia is to comply fully with its obligations to the ILO.

C. The Government's further reply

Information on the general situation of
workers and their organizations in Indonesia
with regard to freedom of association
(310th Report, paragraph 473(a))

583. In its communication dated 28 January 1999, the Government first of all states that in order to give a broader protection to the right to organize of workers, it ratified Convention No. 87 in June 1998. Furthermore, in August 1998 an ILO direct contacts mission was carried out in the country at the request of the Conference Committee on the Application of Standards in June 1998 in order to assist the Government in ensuring that its labour legislation was brought into full conformity with Conventions Nos. 87 and 98. Pursuant to the visit of the direct contacts mission, it was decided to postpone the entry into force of the Manpower Act No. 25 of 1997 -- which was originally due to take effect on 1 October 1998 -- until October 2000. The Government points out that in line with the recommendations contained in the report of the direct contacts mission, the Manpower Act is being revised and a Trade Union Bill, as well as a Bill on Labour Disputes Settlement, are being drafted in accordance with Conventions Nos. 87 and 98 in consultation with the social partners and with ILO technical assistance. On a practical level, the Government states that the Minister of Manpower had sent a letter on 16 June 1998 to the Minister of State for Coordination of Security and Political Affairs requesting that appropriate measures be taken to ensure that the military no longer intervened in labour disputes. Subsequently, the Coordination Minister sent instructions to the security agencies throughout the country to ensure that local military officials refrained from intervening in collective bargaining negotiations and the settlement of industrial disputes. Finally, the Government stresses that the reform process (reformasi) taking place in all spheres of activity in Indonesia since June 1998 has led to the emergence of 11 new trade unions as of December 1998, besides the previously existing FSPSI and SBSI. These unions, which carry out their activities freely without government interference, are the following: (1) Federation of All Indonesian Trade Unions (Federasi Serikat Pekerja Seluruh Indonesia (FSPSI)); (2) Federation of All Indonesian Trade Unions Reformation (FSPSI Reformasi)); (3) Indonesian Prosperity Trade Union (Serikat Buruh Sejahtera Indonesia (SBSI)); (4) Democratic Workers' Unions' Federation (Federasi Serikat Buruh Demokrasi Seluruh Indonesia (FSBDSI)); (5) Moslem Trade Union (Serikat Buruh Muslimin Indonesia (SARBUMUSI)); (6) Federation of Free Trade Unions (Gabungan Serikat Pekerja Merdeka Indonesia (GASPERMINDO)); (7) Indonesian Moslem Workers' Brotherhood (Persaudaraan Pekerja Muslimin Indonesia (PPMI)); (8) Federation of Bank and Financial Institutions Workers' Union (Federasi Organisasi Pekerja Keuangan dan Perbankan Indonesia (FOKUBA)); (9) Marhaen Workers' Union (Kesatuan Buruh Marhaen (KBM)); (10) National Workers' Union (Kesatuan Pekerja Nasional Indonesia (KPNI)); (11) Indonesian Workers' Union (Kesatuan Buruh Kebangsaan Indonesia (KBKI)); (12) Journalists' Trade Union (Serikat Pewarta, Serikat Pekerja Kewartawanan Indonesia); (13) Indonesian Union of Oil and Energy Employees (Serikat Pekerja Minyak dan Energi Indonesia).

Legislative impediments preventing workers
from establishing organizations of their own
choosing (310th Report, paragraph 473(b))

584. The Government indicates that in line with the spirit of reformasi, Ministerial Regulation No. 03/MEN/1993 as well as Ministerial Regulation No. 01/MEN/1994 -- both of which related to the registration of workers' unions and were the object of the Committee's previous comments -- have been repealed and replaced by Ministerial Regulation No. PER-05/MEN/1998 of 27 May 1998 on the Registration of Workers' Organizations. This Regulation of 1998 prescribes that federations can register their branches at the company, district and provincial levels merely by submitting the union's constitution and by-laws and the list of its officers. This Regulation does not contain any requirements with regard to the number of union members or branch offices. Moreover, it is no longer a requirement for the union to provide a list of union members to the employer concerned. As a result of this new Regulation, it is much easier for unions to register now as illustrated by the fact that there are 13 registered unions which carry out their activities freely.

Registration of the SBSI (310th Report,
paragraph 473(c))

585. The Government explains that the SBSI, along with 12 other unions, have been registered at the national level. Moreover, it is registered in seven provinces consisting of 22 SBSI branch offices.

Situation prevailing at the Southern
Cross Textile Industry (310th Report,
paragraph 473(d))

586. With regard to the alleged acts of anti-union discrimination carried out against workers of the Southern Cross Textile Industry (SCTI) found to be members of the SBSI, the Government states that these workers who were dismissed from the SCTI in April 1993 were given severance pay by the company ranging from Rp.3,859,000 to Rp.5,000,000.

Information on the situation of workers
involved in the April 1994 events in
Medan (310th Report, paragraph 473(e))

587. The Government indicates that Messrs. Muhamad Ali (PT Perindoni) and Mulyadi (PT Ganda Seribu), as well as Messrs. Icang and Suryandi, all SBSI members, who were arrested and detained in connection with the April 1994 events in Medan, have all been released.

Government investigation into
Mrs. Marsinah's death
(310th Report, paragraph 473(f))

588. The Government states, as it has on previous occasions to the Committee, that it is still investigating the case of Mrs. Marsinah, a female labour activist who died in East Java Province in May 1993 further to her participation in strike action. However, the Government still has not been able to elucidate the circumstances of her death. Moreover, although the Government has set up special working groups considered to be professional and independent to handle this case, their work has yielded no results so far. Even an investigation by the Indonesian National Commission on Human Rights has failed to resolve this case.

Information on Mr. Muchtar Pakpahan
(310th Report, paragraph 473(g))

589. The Government indicates that the President of Indonesia granted an amnesty to Dr. Muchtar Pakpahan through Presidential Decree No. 80 dated 25 May 1998. Pursuant to the granting of this amnesty, the criminal charges brought against Dr. Pakpahan in connection with the April 1994 events in Medan as well as the July 1996 events in Jakarta have been dropped. Moreover, Dr. Pakpahan, who is General Chairman of the SBSI, is exercising freely his legitimate trade union activities as illustrated by his attendance at the International Labour Conference in June 1998 in Geneva as part of the official Indonesian delegation to the Conference.

Information on the arrest and detention
of SBSI officers following the July 1996
events in Jakarta (310th Report,
paragraph 473(h))

590. The Government asserts that all SBSI officers who were arrested and detained following the July 1996 events in Jakarta have been released including the nine officers of the SBSI's Riau Branch detained in early August 1996 and Mr. Rekson Silaban, Director of the International Department of the SBSI, who attended the 85th and 86th Sessions of the International Labour Conference in Geneva in June 1997 and June 1998 respectively. Moreover, all charges brought against these officers have been dropped.

Detention of Ms. Dita Sari and
Mr. Coen Pontoh following strike
action (310th Report, paragraph 437(i))

591. The Government states that Mr. Coen Pontoh was released pursuant to Presidential Decree No. 105 dated 23 July 1998 but that Ms. Dita Sari is still in prison. She was sentenced to four-and-a-half years' imprisonment on 22 April 1997 and her appeal to the Supreme Court was dismissed in November 1997. The Minister of Manpower had sent three letters to the Minister of Justice dated 31 August, 23 September and 25 November 1998 requesting that she be released. On 18 December 1998, the Minister of Manpower had also sent a letter to the President asking for the immediate release of Ms. Dita Sari. He was informed that she had been offered conditional release which she had refused.

Dismissal of 19 contract labourers from
PT Pelangi Selaras Internusa
(310th Report, paragraph 473(j))

592. The Government explains that the employment of 19 contract workers from PT Pelangi Selaras Internusa was terminated in Medan in July 1997 because they did not respect their employment contracts and not because of their SBSI membership. As a result, the management of the company submitted a proposal to the Committee for Labour Disputes Settlement (P4P) to terminate the employment of these 19 workers. On 7 October 1997, P4P decided that the employment of these workers should be terminated without severance pay. However, pursuant to the workers' request, the management gave them good will pay as witnessed by the mediator of the local office of the Manpower Ministry in Medan. The workers who were given good will pay are as follows: (1) Ms. Meri: Rp.952,860; (2) Ms. Tamiana: Rp.794,560; (3) Ms. Susi: Rp.636, 010; (4) Ms. Sri Susilayani: Rp.636,010; (5) Ms. Yurnalis; Rp.636,010; (6) Ms. Kartini: Rp.636,010; (7) Ms. Lilis Sulistianingsih: Rp.258,550; (8) Ms. Wahyu NST: Rp.258,550; (9) Ms. Maini: Rp.258,550; (10) Ms. Kartika: Rp.258,550; (11) Ms. Asroni: Rp. 258,550; (12) Ms. Ati Muliani: Rp.258,550; (13) Ms. Irma: Rp.258,550; (14) Ms. Sara: Rp.258,550; (15) Ms. Sri Wahyuni: Rp.258,550; (16) Ms. Ari Masniari: Rp.477,460; (17) Ms. Ima: Rp.477,460; (18) Ms. Marianti: Rp. 477,460; (19) Ms. Mia: Rp.477,460.

Alleged detention of two IUF officials
in September 1997 (310th Report,
paragraph 473(k)(i))

593. The Government contends that the SBSI meeting held on 19 September 1997 was illegal since the SBSI did not inform the local security forces. The two IUF officials who attended this illegal meeting were taken to the police stations for questioning and subsequently asked to leave the country as a result of their illegal actions.

Alleged arrest and detention of eight
SBSI leaders in March 1998
(310th Report, paragraph 473(k)(ii))

594. The Government replies that eight SBSI leaders and activists, namely Ms. Farah Diba (Director of Women and Child Labour Department); Mr. Yudi Rahmat (Vice-Chairman of SBSI); Mr. Yudi Hermanto (Chief of SBSI Padang Branch Office); Mr. Sukirman (member of SBSI Lampung Branch Office); Mr. Sanusi (member of SBSI Tanjung Priok Branch Office, North Jakarta); and Messrs. Seno, Mahmud and Sumantri (activists of SBSI Serang Branch Office) were responsible for conducting unauthorized demonstrations and/or illegal meetings in early March 1998. Although they were questioned by the police, all of them were released shortly thereafter. None of them were detained.

The WCL's new allegations of 26 February 1999

595. In its communication dated 11 May 1999, the Government addresses the various issues raised in the WCL's new allegations relating to the continual interference of the military in labour disputes, the lengthy registration process and the trade union rights of civil servants.

596. With regard to the allegation that the military intervened during the course of a labour dispute in February 1999 in PT Indosentral Megah Garmen in Bekasi, West Java, the Government indicates that on 25 January 1999, the Bekasi Local Office of the Department of Manpower (DOM) was informed of the closure of the above company. On 27 January 1999, officials from the local DOM office invited management of the company to pay outstanding wages and other allowances to the workers as well as their severance pay. Subsequently, although management and the local union SBSI Garteks agreed that the severance pay would be paid to the laid-off workers on 10 February 1999, management then stated that the company did not have enough money to give severance pay to the workers. As a result, a case was submitted to the Labour Disputes Settlement Council which issued a decision on 11 February 1999 whereby management was requested to pay the workers' severance pay. Since management was still unable to pay, the SBSI requested the Bekasi District Court to order execution of the Labour Disputes Settlement Council's decision. Consequently, management of the company and the workers recommenced negotiations on 8 March 1999 resulting in an agreement on 18 March 1999 to the effect that the building plant of PT Indosentral Megah Garmen would be rented out and that the income would be used to give workers their severance pay. The Government stresses, however, that there had been no military intervention during the process of the settlement of the dispute between the company and the workers. Similarly, there had been no military intervention in the case of PT Gajah Tunggal in Tangerang, West Java, where workers who were members of the SBSI were allegedly dismissed from the company in February 1999. The dismissal of the workers concerned had nothing to do with their SBSI membership but rather was related to serious indisciplinary acts such as carrying fireworks/explosives into the factory and rejecting mutations or job rotations requested by management.

597. The Government then turns to the WCL's allegations that while progress has been made in the area of registration of independent unions at the national level, the registration of local unions at plant level is excessively long and full of obstacles. Regarding alleged obstacles to the registration of local SBSI unions in Bandar Lampung in South Sumatra, the Government states that the Indonesian Forestry and Wood Workers' Union (KAHUT SPSI) was the first union to be established in PT Sinar Laut and PT Andatu Lestari Plywood. However, since the SBSI also wished to establish itself in these companies, the Regional Office of the Department of Manpower requested the SBSI to submit its membership list so that the union could be given a registration number. However, the local SBSI union refused to submit its membership list in conformity with the requirements of Ministerial Regulation No. 05/1998 which explains the delay in its registration. The Minister of Manpower nevertheless requested the Regional Office to accept the local SBSI union's application for registration which it did subsequently. With regard to the registration of the local SBSI union at PT Surya Amam Tunggal in Sidoarjo, East Java, the Government explains that on 16 July 1998, the local union applied for registration to the Local Office of the Department of Manpower (DOM) in Sidoarjo. Although the Local Office of the DOM sent the registration number via post shortly thereafter, executives of the local SBSI union informed the DOM that they still had not received the registration number as of the end of August 1998. Hence, the Local Office of the DOM again issued a new registration number which was received by the union on 9 September 1998. The delay in registration in this case was therefore due to bad communication between the parties. The Government points out that the local SBSI union is now established in PT Surya Amam Tunggal alongside the local SPSI union. The Local Office of the DOM in Sidoarjo has conducted various briefings in order to ensure that the employer does not obstruct the activities of the unions in the company.

598. With regard to the issue of the right to organize of civil servants, the Government acknowledges that in Sidoarjo, East Java, the teachers' association (PGRI) which first established itself in 1993 has not yet been registered as a trade union. However, since the ratification of Convention No. 87, civil servants are now free, in practice, to join other organizations besides KORPRI, which in any event is no longer a government-controlled organization. However, it is true that the law is not very clear on this matter. Hence, the Ministry of Home Affairs, which is responsible for supervising the administration and functioning of the civil service, as well as the Ministry of Labour, are pursuing measures with ILO technical assistance to ensure that legislation grants civil servants, including public school teachers, the right to join and establish organizations of their own choosing.

Concluding remarks

599. The Government affirms that in the new era of reformasi in Indonesia, particular attention is being paid to the implementation of human rights and especially to the protection of workers' rights. All labour activists, with the sole exception of Ms. Dita Sari, have been released and charges against them dropped. Freedom of association and freedom of expression, as well as the right to hold meetings, are being fully guaranteed in line with this spirit of reformasi. Finally, and as mentioned before, Manpower Act No. 25 of 1997 is being revised and a Trade Union Bill, as well as a Bill on Labour Disputes Settlement, are being drafted with ILO technical assistance.

D. The Committee's conclusions

600. The Committee notes that this case, which has been examined on five previous occasions, addresses serious allegations of infringements of trade union rights in Indonesia concerning the arrest and detention of trade union leaders and activists, the denial of the right of workers to establish organizations of their own choosing, interference by government authorities, the military and employers in trade union activities, various acts of anti-union discrimination including dismissals and restrictions on strike action and collective bargaining.

601. However, since its previous examination of this case in May 1998 [310th Report, paras. 432 to 473], the Committee observes that a series of measures have been taken by the Government over the past year which have contributed to the positive development of the trade union situation in Indonesia. In particular, the Committee notes that the Government ratified Convention No. 87 in June 1998 and received an ILO direct contacts mission to the country in August 1998, which had the mandate of assisting the Government in ensuring that its labour legislation was brought into full conformity with Conventions Nos. 87 and 98. The Committee notes further that in line with the recommendations contained in the report of the direct contacts mission, the Government is redrafting its labour legislation in consultation with the social partners and with ILO technical assistance. On a practical level, all SBSI leaders and activists have been released from prison and the military has been issued instructions at all levels to refrain from intervening in labour disputes. The Committee takes note of these developments with interest and considers that they constitute significant progress with regard to freedom of association in Indonesia. It trusts that this progress will continue and enable the industrial relations system prevailing in Indonesia to be brought fully in line with freedom of association principles. The Committee proposes to review point by point the various issues it had raised during its previous examination of this case in the light of the recent events which have taken place in the country and which are reflected in the Government's reply.

* * *

602. During its previous examination of this case, the Committee had concluded that Ministerial Regulation No. PER-03/MEN/1993, which imposed a situation of trade union monopoly by requiring the approval of the SPSI in order for any other union to be registered, comprised requirements that were so stringent as to constitute a major limitation to freedom of association and collective bargaining. It had therefore urged the Government to eliminate such legislative impediments (particularly section 2(a), (b) and (c) of this Regulation) so as to ensure that the right of workers to organize and bargain collectively was fully recognized in law and in practice.

603. The Committee notes with interest that Ministerial Regulation No. PER-03/MEN/1993 has been repealed and replaced by Ministerial Regulation No. PER-05/MEN/1998 of 27 May 1998 on the registration of workers' organizations. While article 2 of Regulation No. 5 of 1998 prescribes that unions must register their branches at the company, district and provincial levels, the Committee notes that this Regulation does not imposed any requirements with regard to the number of union members or branch offices that an organization must have in order to be registered. According to the Government, this Regulation of 1998 has made it much easier for unions to register themselves as illustrated by the establishment of 13 unions as of December 1998. The Committee further notes that in line with the recommendations of the ILO direct contacts mission which visited the country in August 1998, Manpower Act No. 25 of 1997 -- whose entry into force has been postponed until October 2000 -- is being revised and a Trade Union Bill, as well as a Bill on Labour Disputes Settlement, are being drafted in conformity with Conventions Nos. 87 and 98 with ILO technical assistance. The Committee draws these aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

604. Regarding the specific case of the SBSI which had been seeking registration since 1993, the Committee had urged the Government on previous occasions to take the appropriate steps to ensure that the SBSI was granted registration without any further delay so as to enable it to exercise legitimate trade union activities. The Committee is pleased to note that the SBSI has finally been granted registration at the national level. The Committee further observes that the SBSI is registered in seven provinces consisting of 22 SBSI branch offices.

605. With regard to the specific situation of Mr. Muchtar Pakpahan, the Committee had urged the Government, during its previous examination of this case, to drop the criminal charges brought against Mr. Pakpahan in connection with the April 1994 events in Medan, as well as the July 1996 events in Jakarta, and to ensure that he could exercise freely his legitimate trade union activities. The Committee notes with interest the information provided by the Government to the effect that following a presidential amnesty granted to Mr. Pakpahan on 25 May 1998, all criminal charges pending against him in connection with the April 1994 events in Medan, as well as the July 1996 events in Jakarta, have been dropped. Moreover, as General Chairman of the SBSI, Mr. Pakpahan is exercising freely his legitimate trade union activities.

606. During its previous examination of this case, the Committee had urged the Government to ensure that 16 workers found to be members of the SBSI who were dismissed from the Southern Cross Textile Industry (SCTI) in April 1993 were reinstated in their jobs, or to ensure that they received full compensation [see 310th Report, para. 460]. The Committee takes note of the Government's statement that these workers were given severance pay ranging from Rp.3,859,000 to Rp.5,000,000.

607. With regard to the situation of Messrs. Muhamad Ali, Mulyadi, Icang and Suryandi, all SBSI officers who were arrested and detained in connection with the April 1994 events in Medan, the Committee notes the Government's statement that these persons have all been released. The Committee further notes that all SBSI officers who were arrested, detained or interrogated by the police following the July 1996 events in Jakarta have also been released. The Committee would nevertheless recall that the harassment, arrest or detention of trade union leaders for activities connected with the exercise of trade union rights are contrary to the principles of freedom of association.

608. As regards the investigation into the homicide of Mrs. Marsinah, a labour activist, which occurred in May 1993, the Committee profoundly deplores that the circumstances of her death have still not been elucidated by a Government investigation into the matter which commenced in June 1995. In this respect, the Committee would draw the Government's attention to the fact that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights. Moreover, the killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 51 and 55]. Noting with regret that the Government has not reported on any progress made in its investigation in shedding any light on this serious incident, the Committee reiterates its request to the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah which occurred over six years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.

609. During its previous examination of this case, the Committee had urged the Government to reply to the allegation that heavy prison sentences had been imposed on Ms. Dita Sari and Mr. Coen Pontoh, two union leaders of the independent labour organizations Pusat Perjuangan Buruh Indonesia (PPBI) and Serikat Tani Nasional (STN), respectively, for having participated in strike action in the city of Surabaya on 8 July 1996. The Committee recalls that reasons for the industrial action included typical labour demands as well as demands for the repeal of strict security laws and for the military to stop intervening in labour affairs. However, the police and army units intervened and violently broke up the strike action; subsequently, Ms. Dita Sari and Mr. Coen Pontoh were arrested and detained. The Committee notes the Government's statement that although Mr. Coen Pontoh was released on 23 July 1998 following the granting of a presidential amnesty, Ms. Dita Sari is still in prison. The Committee notes with deep regret that she was sentenced to four-and-a-half years' imprisonment on 22 April 1997. The Committee must emphasize that the detention of trade union leaders for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest, op. cit., para. 71]. The Committee therefore insists on the immediate and unconditional release of Ms. Dita Sari. In this respect, the Committee welcomes the moves by the Minister of Manpower to write to the Minister of Justice on three occasions and to the President, supporting the early release from imprisonment of Ms. Dita Sari and firmly hopes that the competent authorities will proceed to implement this recommendation in line with the Government's international obligations stemming from the ratification of Convention No. 87.

610. As regards the allegation that 18 contract labourers were dismissed from PT Pelangi Selaras Internusa in Medan on 11 July 1997 on account of their SBSI membership, the Government replies that the employment of 19 contract workers from this company was indeed terminated. However, these workers were not dismissed on account of their SBSI membership but because they had not respected their employment contracts. While noting that these 19 workers accepted compensation for their termination of employment by the company, the Committee wishes to point out that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker if the true reason is the worker's trade union membership or activities [see Digest, op. cit., para. 707].

611. Concerning the alleged detention of two IUF officials in September 1997, the Government contends that since the SBSI meeting held on 19 September 1997 was illegal, the two IUF officials who attended this illegal meeting were taken to the police station for questioning and subsequently asked to leave the country as a result of their illegal actions. Recalling that the two IUF officials in question were merely attending the second Congress of the SBSI, whose Makanan, Minuman, Periwisata, Restaurant and Hotel Federation is affiliated to the IUF, the Committee would draw the Government's attention to the principle that visits to affiliated national trade union organizations and participation in their congresses are normal activities for international workers' organizations [see Digest, op. cit., para. 638]. In these circumstances, the Committee considers that the actions of the IUF officials cannot be considered as illegal.

612. With regard to the alleged arrest and detention of eight SBSI leaders and activists in March 1998, the Government states that these eight SBSI leaders and activists (Ms. Farah Diba, Mr. Yudi Rahmat, Mr. Yudi Hermanto, Mr. Sukirman, Mr. Sanusi, Mr. Seno, Mr. Mahmud and Mr. Sumantri) were responsible for conducting unauthorized demonstrations and/or illegal meetings in early March 1998. In this respect, the Committee recalls that permission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused [see Digest, op. cit., para. 139]. The Government goes on to explain, however, that although these eight leaders and activists were questioned by the police, all of them were released shortly thereafter. The Committee must emphasize in this regard 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, nevertheless, takes due note of the Government's statement that in the new era of reformasi in Indonesia, particular attention is being given to the protection of workers' rights and that freedom of association and freedom of expression, as well as the right to hold meetings, are being guaranteed in line with the spirit of reformasi.

613. With regard to the alleged violations of freedom of association reported by the SBSI in its communication dated 11 June 1996, the Committee had requested the complainant to provide additional information in view of the wide discrepancies between the complainants' and the Government's versions of events that occurred. The Committee notes that the SBSI provides additional information on the following allegations: (i) the physical violence against Messrs. Aryanto and Rozali; (ii) the grounds justifying Mr. Asipto Parangun-Agin's arrest; (iii) the content of the pamphlet distributed by Mr. Farid Mu'adz on the right to strike; (iv) the acts of anti-union discrimination against seven workers of the PT Tris Delata Agindo who were allegedly forced to withdraw their SBSI membership; and (v) the acts of vandalism against the SBSI sign for Medan and Binjai branches. The Committee takes note of the SBSI's statement that the above cases have been resolved due to the widespread reform movement (reformasi) which first gained ground in Indonesia in June 1998 and that the above allegations should no longer be considered as outstanding. As a result, the Committee considers that this aspect of the case does not call for further examination.

614. Regarding the WCL's new allegation that the military intervened in labour disputes involving local SBSI unions in PT Indosentral Megah Garmen in Bekasi, West Java, and in PT Gajah Tunggal in Tangerang, West Java, the Committee notes that the Government does not contest that there were labour disputes involving local SBSI unions in both companies in February 1999. However, it categorically denies that the military had intervened in either of these disputes. In view of the contradiction between these two statements, the Committee would recall that a genuinely free and independent trade union movement can only develop where fundamental human rights are respected and that all appropriate measures should be taken to guarantee that irrespective of trade union affiliation, trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind [see Digest, op. cit., paras. 35 and 36].

615. As regards the WCL's new allegation that the registration of local SBSI unions at the plant level is excessively long and full of obstacles, the Committee notes the Government's statement that there was a delay in the registration of local SBSI unions in PT Sinar Laut and PT Andatu Lestari Plywood in Bandar Lampung in South Sumatra. However, this was due to the fact that the local SBSI union did not comply with the formalities prescribed by Ministerial Regulation No. 05/98. The Government points out that the local SBSI union was nevertheless registered subsequently. In the case of PT Surya Amam Tunngal in Sidoarjo, East Java, the delay in registration was due to poor communication between the Local Office of the Department of Manpower and the local union. However, the Government indicates that in all three companies the local SBSI unions are now established and carrying out their activities alongside the local SPSI unions. In these circumstances, the Committee would recall that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be applied in such a way as to delay or prevent the setting up of occupational organizations [see Digest, op. cit., paras. 248 and 249].

616. Finally, as regards the WCL's allegation that public servants in general and teachers, in particular, do not have the right to join organizations of their own choosing, the Government acknowledges that the teachers' association (PGRI) which first established itself in 1993 in Sidoarjo, East Java, has not yet been registered as a trade union. It contends, however, that since the ratification of Convention No. 87, civil servants are free to join organizations of their own choosing in practice. The Committee would remind the Government that public servants, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Digest, op. cit., para. 213]. In this respect, the Committee notes the Government's statement that the Ministry of Home Affairs along with the Ministry of Labour, are pursuing measures with ILO technical assistance to ensure that legislation grants civils servants, including public school teachers, the right to join and establish organizations of their own choosing. The Committee draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

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

(a) Noting with interest that a series of measures have been taken by the Indonesian authorities over the past year which constitute significant progress with regard to freedom of association in Indonesia, the Committee trusts that this progress will continue and enable the industrial relations system prevailing in Indonesia to be brought fully in line with freedom of association principles.

(b) The Committee reiterates its request to the Government to institute without delay an independent judicial inquiry into the homicide of Mrs. Marsinah, a labour activist, which occurred over six years ago, so as to identify and punish the guilty parties. It requests the Government to keep it informed of the results thereof.

(c) Deeply regretting that Ms. Dita Sari, leader of Pusat Perjuangan Buruh Indonesia (PPBI), was arrested and detained for her participation in industrial action in the city of Surabaya on 8 July 1996, the Committee strongly urges the Government to ensure that the competent authorities take the appropriate measures for her immediate and unconditional release. The Committee requests the Government to keep it informed in this regard.

(d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

Case No. 2000

Definitive report

Complaint against the Government of Morocco
presented by
the Moroccan Labour Union (UMT)

Allegations: Suspension of a trade union official;
refusal to dialogue with elected trade union representatives

618. On 4 January 1999, the Moroccan Labour Union (UMT) submitted a complaint of violation of freedom of association against the Government of Morocco on behalf of its member, the National Federation of Transport Workers (hereinafter, the National Transport Federation).

619. The Government sent its comments and observations on this complaint in communcations dated 11 March and 1 April 1999.

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

A. The complainant's allegation

621. In its communication of 4 January 1999, the National Transport Federation, a member of the Moroccan Labour Union, relates the following facts concerning the Harbour Authorities' Office (ODEP), a public body responsible for operating ports in Morocco.

622. According to the complainant, the staff of ODEP (affiliated to the UMT) organized their statutory congress on 6 December 1998 and renewed the composition of their executive bodies. The congress elected an administrative committee of 21 members and an executive of nine members. In accordance with the legislation, the new executive registered with the authorities on 16 December and then submitted its list of claims to the director-general. This list of claims called for the effective application of the regulations and ODEP classifications to all the staff, the membership of all staff to the national social security fund and an upgrading of wages and bonuses.

623. Both before and after the list of claims had been submitted, the director-general of ODEP allegedly refused outright to discuss with the new trade union executive, refusing even to meet with it. To make his point even clearer, he had Mr. Hijab, former secretary-general of the UMT Federation of ODEP staff, dismissed from his post as a result of a vote at the congress on 6 December 1998, attend the ODEP administrative council held during the week of 20 December in the capacity of staff representative. According to the complainant, the director-general thus chose his partner himself instead of the Federation and the staff and, with an obvious intention to intimidate, he announced the suspension of Mr. Mustapha Dalil, shop steward, trade union delegate and member of the administrative committee set up at the congress of 6 December 1998, for eight days on 28 December.

624. A general 48-hour solidarity strike subsequently took place throughout Morocco from 5 January 1999 onwards. The Moroccan Government, through the Ministry of Procurement to which ODEP and its director-general report, remained totally silent on this matter; meanwhile, the harbour activities of Casablanca, the most important port in Morocco, were completely paralysed.

625. According to the complainant, this attitude illustrates the meaninglessness of the official allegations on social dialogue in Morocco and confirms the continuation of a policy of anti-union repression, of infringements of the free exercise of trade union rights, of repression against trade unionists and of flagrant discrimination against the UMT, its structure and its members.

B. The Government's reply

626. In relation to the allegation that Mr. Dalil was suspended by the Harbour Authorities' Office (ODEP), the Government states in its first communication of 11 March 1999 that, according to information gathered from ODEP and contrary to the UMT's allegations, Mr. Dalil had not been elected either as shop steward or trade union delegate and, as such, held no representative office. As may be seen from the minutes of the meeting held by the National Transport Federation of the Moroccan Trade Union (UMT) on 6 December 1998, of which the Government encloses a copy, Mr. Dalil is not amongst the members of the new federal executive of the UMT. The allegations that he was punished on trade union grounds are therefore completely unfounded. The decision to suspend him for eight days was taken by his hierarchical superior on grounds of violent incitement to down tools and the creation of disturbances at the workplace.

627. As regards the participation of Mr. Hijab in the ODEP administrative council, the Government points out that the participation of staff representatives in the work of this administrative council is decided upon in accordance with the provisions of Decree No. 84.844 of 10 Rajeb 1405 (1 April 1985), under Act No. 6.84 setting up ODEP, which stipulates that the administrative council of this body is made up, amongst others, "of two representatives of the Harbour Authorities' Office appointed by the Prime Minister upon proposal of the ministry responsible for procurement". The Government continues by stating that Mr. Hijab, who was elected as shop steward on 3 October 1997, sits on the ODEP administrative council as an elected representative of the staff and not as a representative of a trade union federation. Furthermore, the Government acknowledges that Mr. Hijab, as pointed out by the complainant, was "dismissed from his functions as a result of the vote taken in congress on 6 December 1998". The Government explains, however, that the letters convening the abovementioned administrative council were sent on 27 November 1998, that is ten days before the holding of the congress on 6 December and 19 days before the minutes of this congress were sent to the ODEP management. Consequently, the interpretation given by the UMT to Mr. Hijab's participation on the ODEP's administrative council is entirely unfounded, as irrefutably proved by the facts mentioned above.

628. As regards the allegation of refusal to dialogue with the Federation of the UMT, the Government points out that social dialogue is a long-standing tradition within the ODEP. A circular dated 15 June 1993 (a copy of which was enclosed) concerns social dialogue and establishes a timetable for the holding of quarterly meetings with the trade unions at local level and biannual meetings at the central level with each major trade union federation. The meetings for these discussions have been planned so as to distinguish between matters of a local nature and those of a general nature affecting all ports and to separate issues relevant to the ports from those concerning general management. The ODEP management therefore, as soon as it had received the list of claims from the local executive of the UMT of the port of Casablanca, immediately transmitted the document to the management operating the port in question authorized to examine it with the trade union concerned, in accordance with the procedure explained above. Furthermore, the Government points out that the ODEP management maintains that it did not receive from the new executive of the National Transport Federation any request to speak with it since its election on 6 November 1998. The UMT's complaint, according to the Government, tends to create confusion concerning the dates on this matter by stating that the list of claims was submitted by the National Transport Federation on 16 December 1998, whilst in fact the initiative lay with the local executive of the UMT which in fact deposited it on 6 November 1998, i.e. 20 days before the election of the executive bodies of the National Transport Federation. In any event, the Government states that the social dispute which prompted this complaint had been settled following the signing of an agreement upgrading -- subject to the approval of the supervisory administrations -- a number of bonuses granted to the ODEP staff, including transport bonuses, meal allowances, bonuses for the Al.Adha and Achoura feast days and educational allowances.

629. Concerning the allegation that the Government was conducting a policy of anti-union repression, the Government maintains that the promotion of freedom of association and social dialogue with the social partners is one of its major concerns and constitutes one of the cornerstones of its policy to guarantee the respect of workers' basic rights in general and trade union rights in particular. It has embarked upon a process of dialogue with the trade union organizations, accompanied by a set of measures clearly showing that this position is irreversible. Two meetings at the level of the Prime Minister were held with the trade unions in 1998, followed by meetings with the Ministers of Social Development, Solidarity and Employment, and of Vocational Training during the same period. A national tripartite seminar on social dialogue was also organized in cooperation with the ILO in April 1998, followed by another seminar on freedom of association in February 1999. A tripartite committee was also set up to examine the draft Labour Code before it was to be submitted for adoption to the competent authorities. This committee has met on a regular basis since 13 January 1999, with the participation of the most representative trade union federations.

630. The Government, which notes the absence of any tangible evidence provided by the complainant to back its assertions that it is pursuing "a policy of anti-union repression infringing the free exercise of trade union rights", objects strongly to these allegations which are totally unfounded and asks the Committee on Freedom of Association to take account of this in its recommendations.

631. In a subsequent communication dated 1 April 1999, the Government encloses a copy of the agreement signed by the Harbour Authorities' Office and the UMT following the collective dispute between them in December and adds that this same agreement has also been signed with two other trade union executives belonging to the other most representative trade union federations: "the Democratic Confederation of Labour and the General Union of Moroccan Workers".

632. As regards the trade union responsibilities of Mr. Dalil, the Government points out once again that, according to the minutes of 6 December 1998 sent by the UMT to ODEP -- of which a copy has been communicated -- the person concerned is neither a shop steward, because he was not elected at the last elections, nor a trade union delegate because he is not included amongst the members of the UMT union executive listed in the minutes. The Government points out that the ODEP management states that the UMT had never sent it any notice concerning the composition of the administrative committee set up, according to the complainant, at the congress of 6 December 1998. As ODEP was not in possession of the list of the members of this committee, it does not know whether Mr. Dalil is a member or not. The only trade union representatives whose names were communicated to ODEP are those included in the minutes of 6 December 1998 mentioned by the Government in its first communication.

C. The Committee's conclusions

633. The Committee notes that this case concerns allegations that a trade union official was suspended for eight days and that an employer refused to conduct a dialogue with a trade union representative elected and appointed by the complainant to submit a list of claims to the employer.

634. The versions of the complainant and the Government differ on a number of points. According to the complainant, the employer mentioned in this specific case, i.e. the Harbour Authorities' Office (ODEP), failed to take account of the new executive bodies of the National Transport Federation elected at the statutory congress of 6 December 1998 and of the list of claims submitted to the director-general of the Harbour Authorities' Office. Thus, on 20 December 1998, the ODEP management called upon the assistance of Mr. Hijab, former secretary-general dismissed from his functions at the congress of 6 December, in his capacity as staff representative, thus choosing him as a partner instead of allowing the Federation and staff to choose. Furthermore, on 20 December it suspended for eight days Mr. Mustapha Dalil, shop steward, trade union delegate and member of the administrative committee set up at this congress.

635. However, according to the Government, ODEP signed an agreement on an increase in bonuses granted to the staff with all the trade union organizations. The ODEP administrative council is made up, amongst others, of two representatives from the staff of the Harbour Authorities' Office appointed by the Prime Minister upon proposal from the Minister of Procurement. Mr. Hijab sits on the administrative council as a shop steward elected at the elections of 3 October 1997 in his capacity as staff representative and not as representative of a trade union federation. The Government acknowledges that Mr. Hijab was dismissed from his functions at the congress of 6 December 1998, but explains that notifications of the holding of the administrative council dated from 27 November 1998, i.e. ten days before the congress was actually held and 19 days before the minutes of the congress were submitted to the ODEP management.

636. As concerns the aspect of the case concerning the trade union situation of Mr. Dalil and Mr. Hijab, the Committee has examined the minutes of the congress of 6 December 1998 enclosed with the Government's reply and notes that they concern the election of an executive of nine members elected by the general assembly of staff of the Harbour Authorities' Office and do not refer either to Mr. Dalil or to Mr. Hijab. The Committee also notes the Government's statement to the effect that ODEP maintained that it never received any notification of the composition of the administrative committee set up at the congress of 6 December 1998. Furthermore, the complainant has not submitted this list to the ILO. The Committee recalls that trade unions should have the right to be represented by trade union delegates that have been freely elected by the workers.

637. Concerning the suspension of Mr. Dalil, the Committee notes that, according to the Government, the person in question is neither a shop steward nor a trade union delegate and is not included amongst the nine members of the new federal executive of the UMT. The decision to suspend Mr. Dalil for eight days was taken by his hierarchical chief on grounds of violent incitement to lay down tools and creating disturbances at the workplace.

638. On this last point, the Committee points out that no one should be penalized for carrying out or attempting to carry out a legitimate strike and taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 586].

639. Finally, with regard to the labour dispute within the ODEP, the Committee examined with interest the agreement on the upgrading of a certain number of bonuses signed by ODEP and all the trade union organizations, including the complainant, which put an end to the labour dispute.

640. While noting that according to the Government an agreement was reached between the parties to end the labour dispute, the Committee requests the Government to ensure that in future the letters convening the administrative council of ODEP are sent to the newly elected workers' representatives.

The Committee's recommendation

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

The Committee requests the Government to ensure that in future the letters convening the administrative council of ODEP are sent to the newly elected workers' representatives.

Case No. 1996

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

Complaint against the Government of Uganda
presented by
the International Textile, Garment and Leather
Workers' Federation (ITGLWF)

Allegations: Refusal to recognize trade union organizations

642. In a communication dated 24 November 1998, the International Textile, Garment and Leather Workers' Federation (ITGLWF) presented a complaint of violations of freedom of association against the Government of Uganda.

643. The Government furnished its observations in a communication dated 10 February 1999.

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

A. The complainant's allegations

645. In its complaint dated 24 November 1998, the ITGLWF asserts that the Government of Uganda has failed to compel employers in the textile sector to comply with the right of freedom of association. More specifically, the ITGLWF contends that in spite of having a total membership of 2,420 workers in 16 factories, with a membership of well over 50 per cent of the workforce in 13 of those factories (a membership list is attached to the complaint and appears as Annex I to this case)), its affiliate the Uganda Textile, Garments, Leather and Allied Workers' Union (UTGLAWU) is today recognized by only one textile company, the Uganda Fish-Net Manufacturers Ltd., which has a paid-up membership of 200. Even this employer is threatening to follow the others in withdrawing its recognition of the union.

646. The ITGLWF points out that the UTGLAWU is the sole trade union organizing in the sector in Uganda. Without formal recognition, it is impossible for the union to represent the interests of its members. Today, given the major structural changes within the textile, garment and leather industries, workers in the smaller private companies replacing the state-run industries need effective representation more than ever. Currently, this is almost impossible to achieve due to a host of reasons of both a legal and practical nature. With regard to legislation, while freedom of association is guaranteed under the 1995 Constitution, the Trade Unions Decree of 1976 contains the following stringent requirements: (i) a minimum number of 1,000 members for the formation of a trade union (section 8(3)); and (ii) the requirement that the union needs to represent 51 per cent of the workers in order to be recognized by the employer for collective bargaining purposes (section 19(1)(e)). However, on 9 September 1997 the Minister of Justice/Attorney General, Mr. B. Katureebe, issued a legal interpretation indicating that the abovementioned provisions of the Trade Unions Decree are void since they curtail the rights of freedom of association guaranteed by the Constitution. (The text of the Attorney General's letter is attached to the complaint and appears as Annex II to this case.)

647. As regards practice concerning effective representation by a union the ITGLWF states that the following nine state-run textile companies withdrew their trade union recognition agreement following privatization:

Nytil Picfare Ltd. (privatized 20 March 1996);
Leather Industry of Uganda Ltd. (privatized 8 August 1995);
Uganda Bags and Hessian Mills Ltd. (privatized 18 December 1993);
African Textile Mills Ltd. (privatized 16 March 1996);
Rayon Textile Mills Ltd. (privatized in 1993);
Uganda Blanket Manufacturer Ltd. (privatized 10 January 1997);
Uganda Garments Industry Ltd. (closed pending privatization);
Uganda Spinning Mills Ltd. (partially closed pending privatization);
Lango Development Corp. Ltd. (privatized in 1998).

Currently, the UTGLAWU has declared formal disputes at the following companies: Nytil Picfare Ltd., Vitafoam Ltd., Leather Industries of Uganda (case lodged on 2 January 1998 in respect of 70 members); Kimkoa Industry Ltd. (case lodged on 8 December 1997 in respect of 50 members); Tuf Foam (Uganda) Ltd. (case lodged on 2 December 1997 in respect of 60 members); and Marine and Agro Export Processing Co. Ltd. (case lodged on 2 December 1997 in respect of 400 members).

648. According to the ITGLWF, one case in particular has set a very damaging precedent. Nytil Picfare has refused to deal with the union since it was privatized in March 1996. After privatization, many of the 9,000 workers were dismissed. Rank and file resistance was dealt with by the summary dismissal of those involved.

649. Deplorably, the agreement for the sale of the assets of Nyanza Textile Industries Ltd. (NYTIL) to Nytil Picfare Ltd., negotiated by the Minister of State for Finance (Privatization), provided that:

The Purchaser shall be at liberty to take on any person formerly employed by the Seller on such terms and conditions as the Purchaser may agree with such employee; and

The Purchaser shall not be bound by any arrangements or contracts made by the Seller with any Trade Union and shall not be liable for any claim regarding unionized workers previously employed by the Seller.

In the ITGLWF's view, these clauses are in contravention of the country's labour laws and suggest collaboration between the Ugandan Government and investors in private industry.

650. Moreover, the ITGLWF contends that armed with this clause in the sale agreement, Nytil Picfare Ltd. has flatly refused to meet its legal requirements with regard to unionization, despite the fact the union has succeeded in organizing all 1,100 workers currently employed by the company. Management has even refused to attend meetings convened by the Ministry of Labour. The Commissioner of Labour, for his part, argued in a letter dated 2 September 1998 that the Nytil Picfare Ltd. matters are above the Ministry and are being handled by the President himself. The National Centre of Trade Unions, the UTGLAWU and the ITGLWF have on a number of occasions asked the Government to rule in favour of trade union recognition, but despite assurances that all necessary measures would be taken to bring the matter to a speedy and satisfactory conclusion, no progress has been made. Again, this seems to indicate collusion between the Government and employers.

651. The ITGLWF stresses that the situation at Nytil Picfare has encouraged other companies to follow suit. For instance, Mr. B. Gopal, manager of the Leather Industries of Uganda Ltd., in a letter to the UTGLAWU dated 7 September 1998, states clearly:

We have further learnt that even very major industries, e.g. Nytil Picfare Limited, employing more than thousand workers are yet to recognize you though they have been operational earlier than us. In view of this, we would suggest that we start discussions on your claim for recognition in due course once our business situation improves, and also once you are recognized by the newly reconstituted garment manufacturers of repute. (Emphasis is B. Gopal's.)

652. The ITGLWF adds that other sectors which have been particularly affected by a refusal of management to recognize trade unions following structural adjustment measures include the railway sector and the hotel sector. In conclusion, it asserts that failure on the part of a government to enforce recognition when a union has fulfilled all the legal requirements constitutes a breach of Conventions Nos. 87 and 98 on freedom of association and the right to bargain collectively and requests that the Committee on Freedom of Association carry out an urgent investigation in this regard.

B. The Government's reply

653. The Government affirms that it is committed to the fundamental rights of workers and the right of freedom of association as the basic foundation of other rights. This commitment is expressed in the provisions of the national Constitution of 1995. Freedom of association and the right to organize and bargain collectively are guaranteed in articles 29(1)(e) and 40(3) of the Constitution. This position is acknowledged in the complaint.

654. It is also true, however, that section 19(1)(e) of the Trade Unions Decree No. 20 of 1976, which provides that a union must have a 51 per cent majority at least in order to be recognized by an employer, is not in line with the new Constitution of 1995. This problem has already been acknowledged by the Government and is being addressed within the framework of the labour law reform process which has been shared with the ILO.

655. The Government explains that the intentions and objective of its economic reform policies, privatization and divestiture programmes were aimed at rehabilitating the economy and building a foundation for sustained economic growth, national development and poverty reduction. Related to the above, the Government considers it important to point out that the complainant's assertion that 9,000 workers lost their jobs as a result of privatization is false. The jobs were not lost because of privatization but rather as a result of mismanagement and asset stripping. The enterprises in question had ceased operations and had already been shut down. In most cases, these enterprises had been non-operational for over one year by the time of divestiture. On the contrary therefore, the divestiture of these enterprises to new private owners, who have revived them, has restored opportunities for some of the workers to remain employed thereby creating potential membership for the union.

656. The Government then points that out of the 13 industries listed by the complainant in Annex I, only four (NYTIL, African Textile Mills, Uganda Leather and Tanning Industry and Lango Development) were privatized under the Government's reform and divestiture programme. Five of the others (MULCO, Uganda Garments (1973), Uganda Fish-Net Manufacturers, Uganda Blanket Manufacturers and Uganda Rayon Textiles) were repossessed by the former owners under the Expatriated Properties Act 1982, while two (United Garments Industry Ltd. and Uganda Bags and Hessian Mills) went into receivership and one (Blue Bird) was not a State Enterprise. It is therefore misleading for the complainant to claim that its affiliate's membership was reduced primarily as a result of the implementation of the Government's divestiture programme.

657. Concerning the case of Nytil Picfare, the Government indicates that provisions cited in the agreement, for the sale of assets of Nytil to Nytil Picfare, do not stop workers from unionizing under the labour laws. Nytil was not sold as a going concern. The Government merely sold the assets of Nytil to Nytil Picfare. Consequently, there was a new corporate entity and the normal practice would be for the union to enter into a new recognition agreement with the new company. The spirit and effect of the provisions cited was merely to clarify and emphasize that Nytil, rather than Nytil Picfare, would remain responsible for the underlying obligations to workers under the agreements with the union including settlement of terminal benefits.

658. The Government further considers that the statement made implying collusion between the Government and employers is unfortunate. The problem of non-recognition of trade unions has been a shared concern among the social partners. The Government has addressed this problem at regular tripartite meetings and has maintained regular dialogue with the employers concerned. The interpretations sought from the Attorney General and the labour law revision process are a clear indication of the Government's genuine commitment to address this shared concern. Moreover, while the Government is pursuing its efforts at the national level, the Government and the social partners will inevitably need technical assistance to strengthen their institutional capacities and sensitization of the stakeholder.

659. In conclusion, the Government reaffirms its commitment to the fundamental rights of workers and is determined to promote them. It is therefore incumbent upon the Government and its social partners to strengthen their collaborative efforts to find amicable solutions for the protection and promotion of social justice.

C. The Committee's conclusions

660. The Committee notes that the allegations in this case are of both a legislative and factual nature in respect of the issue of denial of union recognition for collective bargaining purposes.

661. As regards the legislative aspect of the case, the complainant alleges that while the Ugandan Constitution guarantees freedom of association, the Trade Unions Decree of 1976 contains provisions which make it difficult for a union to be recognized by the employer for collective bargaining purposes. The Committee notes that the Government does not refute this allegation. On the contrary, it acknowledges that the provisions in question are not in line with the Ugandan Constitution. The Committee, for its part, notes that section 8(3) of the Trade Unions Decree of 1976 stipulates that "No trade union shall be registered unless it is composed of not less than one thousand registered members" and that section 19(1)(e) provides that "every employer shall be bound to recognize a registered trade union to which at least 51 per cent of his employees have freely subscribed their membership and in respect of which the Registrar has issued a certificate under his hand certifying the same to be a negotiating body with which the employer is to deal in all matters affecting the relationship between the employer and those of his employees who fall within the scope of membership of the registered trade union".

662. The Committee considers that the two abovementioned provisions give rise to two different sets of problems from the standpoint of freedom of association. With regard to the requirement contained in section 8(3) of the Decree that there be a minimum number of 1,000 members to form a union, the Committee is of the view that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations. In effect, the Committee considers that the establishment of a trade union may be considerably hindered, or even rendered impossible, when legislation fixes the minimum number of members of a trade union at obviously too high a figure, as is the case, for example, where legislation requires that a union must have at least 50 founder members. However, the legal requirement that there be a minimum number of 20 members to form a union does not seem excessive and, therefore, does not in itself constitute an obstacle to the formation of a trade union [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 248, 255 and 256]. In light of the above the Committee can only conclude that the minimum membership requirement set out in section 18(3) of the Trade Union Decree is liable to jeopardize the right of workers to establish organizations of their own choosing without prior authorization. This is all the more likely to occur when section 18(3) is read in conjunction with section 19(1)(e) which grants exclusive bargaining rights to a union representing 51 per cent of the employees concerned. In this sort of situation, the Committee has previously held that a minimum membership requirement of 1,000 set out in the law for the granting of exclusive bargaining rights might be liable to deprive workers in small bargaining units or who are dispersed over wide geographical areas of the right to form organizations capable of fully exercising trade union activities contrary to the principle of freedom of association [see Digest, op. cit., para. 832].

663. Moreover, while it is not necessarily incompatible with Convention No. 98 for the most representative union in a given unit to be granted exclusive bargaining rights for that unit, section 19(1)(e) of the Trade Unions Decree obliges an employer to recognize a union for collective bargaining purposes only when it represents an absolute majority of the workers concerned. It is the Committee's view that such a provision does not promote collective bargaining in the sense of Article 4 of Convention No. 98 since there is a risk that collective bargaining may not take place in the eventuality that no trade union represents the absolute majority of the workers concerned. The Committee therefore considers that where, under a system for nominating an exclusive bargaining agent, there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to all the unions in this unit, at least on behalf of their own members, or they should be allowed to jointly negotiate a collective agreement applicable to the bargaining unit [see Digest, op. cit., paras. 831 and 833].

664. For all the abovementioned reasons, the Committee would request the Government to take the necessary measures to ensure that sections 8(3) and 19(1)(e) of the Trade Unions Decree of 1976 are amended in line with freedom of association principles enunciated in the preceding paragraphs. Noting the Government's recognition that these provisions are not compatible with the new Ugandan Constitution of 1995 and that steps to address this problem are being taken within the framework of the labour law reform process currently taking place in the country, the Committee requests the Government to keep it informed of any developments in this regard.

665. As regards the factual aspects of this case, the Committee notes that the complainant raises two sets of allegations. The first relates to the fact that following privatization of a number of industries in the 1990s in which the complainant's affiliate, the Uganda Textile, Garments, Leather and Allied Workers' Union (UTGLAWU), had organized workers, many workers including the UTGLAWU's members lost their jobs. This would explain the difference between the current membership of the UTGLAWU as opposed to its total membership during the 1980s (Annex I). The Government acknowledges that workers, including UTGLAWU members, lost their jobs but disputes that this occurred as a result of privatization. Rather, the job losses occurred well before privatization since the enterprises in question had ceased operations for over one year by the time of divestiture. Furthermore, only some of the enterprises listed by the complainant where the job losses occurred were privatized, contrary to the complainant's claims. In this regard, the Committee considers that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest, op. cit., para. 935]. In the concrete case at hand, inasmuch as all the workers previously employed by the enterprises privatized under the Government's reform and divestiture programme were affected (irrespective of whether they were or not trade union members or leaders), the Committee concludes that the issue of anti-union discrimination does not, in principle, arise.

666. The Committee notes that the second allegation of a factual nature relates to the non-recognition of the UTGLAWU by management in several enterprises following privatization despite the fact that the union had managed to fulfil the stringent requirements set out in the Trade Unions Decree with regard to union recognition. The complainant further claims that one company in particular, Nytil Picfare Ltd., which employs 1,100 UTGLAWU members, has not only refused to recognize the union but has even refused to attend meetings convened by the Ministry of Labour for this purpose. As a result, other companies are following suit and refusing to recognize the union. The Committee notes that the Government, for its part, acknowledges that the problem of non-recognition of trade unions is a matter of concern to it and that it has tried to address this problem at tripartite meetings and by maintaining dialogue with the employers concerned. Moreover, the labour law revision process is another clear indication of the Government's genuine commitment to address this shared concern.

667. 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 or organizations that are representative of workers in a particular industry. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes [see Digest, op. cit., paras. 821, 823 and 824]. In the situation at hand, the Committee notes that the UTGLAWU is the most representative, if not the sole, organization of workers in the textile sector in Uganda. The Committee further observes that the Government appears to have taken certain conciliatory measures to obtain the concerned employers' recognition of the UTGLAWU for collective bargaining purposes but, regretfully, to no avail. The Committee can only deplore this state of affairs which constitutes a flagrant violation of Article 4 of Convention No. 98, ratified by Uganda. Noting that the UTGLAWU has filed legal proceedings against a number of companies, namely Nytil Picfare Ltd., Vitafoam Ltd., Leather Industries of Uganda, Kimkoa Industry Ltd., Tuf Foam (Uganda) Ltd., and Marine and Agro Export Processing Co. Ltd., in order to obtain recognition for collective bargaining purposes, the Committee trusts that the decisions handed down will be in line with collective bargaining principles. The Committee requests the Government to keep it informed of the outcome of these various court proceedings.

668. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.

The Committee's recommendations

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

(a) The Committee requests the Government to take the necessary measures to ensure that sections 8(3) and 19(1)(e) of the Trade Unions Decree of 1976 are amended in line with freedom of association principles, including those enunciated in its conclusions. Noting the Government's indication that steps are already being taken to address this problem within the framework of the ongoing labour law reform process in the country, the Committee requests the Government to keep it informed of any developments in this regard.

(b) Noting that the Uganda Textile, Garments, Leather and Allied Workers' Union (UTGLAWU) has filed legal proceedings against a number of companies, namely Nytil Picfare Ltd., Vitafoam Ltd., Leather Industries of Uganda, Kimkoa Industry ltd., Tuf Foam (Uganda) Ltd. and Marine and Agro Export Processing Co. Ltd., in order to obtain recognition for collective bargaining purposes, the Committee trusts that the decisions handed down will be in line with collective bargaining principles. It requests the Government to keep it informed of the outcome of these various court proceedings.

(c) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in relation to the application of Convention No. 98.

Annex I


Name of industry/company		1980s: Total unionized members

1. Nyanza Textile Industry Ltd. (NYTILl)		6 500
2. MULCO		3 500
3. African Textile Mills (ATM)		2 000
4. Blue Bird		60
5. Uganda Bags and Hessian Mills Ltd. (JUTE)		600
6. Uganda Spinning Mills Ltd.		2 000
7. Lango Development Co. Ltd-Lira		350
8. Uganda Garments (1973) Ltd.		80
9. Uganda Leather and Tanning Industry Ltd.		300
10. Uganda Fish-Net Manufacturers Ltd.		250
11. United Garments Industry Ltd.		600
12. Uganda Blanket Manufacturers Ltd.		400
13. Uganda Rayon Textiles Ltd.		500
Total membership during the 1980s		17 140

Annex II

The Office of the Minister of Justice/Attorney General
P.O. Box 7183
Kampala
The Republic of Uganda

9 September 1997
The 3rd Deputy Prime Minister
Minister of Labour and Social Welfare
Crested Towers
Kampala

Dear Colleague,

Legal interpretation

I refer to your letter M/LSW/32 Vol. 1 dated 22 August 1997.

Although sections 8(3) and 19(1)(e) of the Trade Unions Decree No. 20 of 1976 provide for a minimum number of 1,000 members for the formation of a trade union, and 51 per cent as a minimum requirement for recognition of a trade union by an employer, respectively, the said provisions must, in terms of article 273(1) of the Constitution, be construed in a manner designed to bring them into conformity with the provisions of the Constitution.

Article 29(1)(e) of the Constitution provides that every person shall have the right to freedom of association which shall include freedom to form and join associations or unions, including trade unions. This right is further reinforced by article 40(3) of the Constitution. Furthermore, article 36 of the Constitution provides that minorities have a right to participate in decision-making processes.

Sections 8(3) and 19(1)(e) of the said Trade Unions Decree are inconsistent with articles 29(1)(e), 36 and 40(3) of the Constitution. Article 2(2) of the Constitution provides that if any other law is inconsistent with any of the provisions of the Constitution, the Constitution shall prevail, and the other law shall, to the extent of the inconsistency, be void.

Clearly the quoted provisions of the said Trade Unions Decree are void since they, in terms of the quoted constitutional provisions, curtail the rights of persons to form or join trade unions.

Yours sincerely,
(Signed) Bart M. Katureebe, S.C.,
Minister of Justice/Attorney General

Case No. 1979

Interim report

Complaint against the Government of Peru
presented by
the General Confederation of Workers of Peru (CGTP)

Allegations: Anti-union dismissals

670. The complaint in the present case is contained in communications from the General Confederation of Workers of Peru (CGTP) of 16 June, 4 August and 9 October 1998. The Government sent its observations in communications dated 6 October 1998 and 4 February 1999.

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

A. The complainant's allegations

672. In its communications of 16 June, 4 August and 9 October 1998, the General Confederation of Workers of Peru (CGTP) alleges that in 1995, 71 National Bank employees, including officials of the National Bank Workers' Trade Union (SINATBAN) and national and regional officials of the CGTP, were arbitrarily dismissed. Ninety per cent of the dismissed workers were subsequently reinstated following a court ruling, while a minority, including seven SINATBAN and CGTP officials, were left without a satisfactory settlement as a result of interference, obstruction and procrastination on the part of the National Bank with the complicity of the judicial authorities.

673. Specifically, the complainant states that as regards the SINATBAN officials Messrs. Marco Antonio Maravi Orellana, Pedro C. Reyes Saenz and Luis F. Cárdena Campanas, the higher court, in its ruling on the appeal lodged by the National Bank, overturned the lower court ruling ordering their reinstatement. A decision is still awaited on the appeal brought before the Constitutional and Social Law Chamber of the Supreme Court by the three union officials in question. As regards Mr. Joaquín E. Gutierrez Madueño, Vice-President of the CGTP, the acting Labour Judge modified the original order for reinstatement, which had been upheld by the Labour Court, by ordering that compensation should be paid in lieu of reinstatement. An appeal against this was lodged with the Supreme Court and no final ruling has yet been handed down.

674. The complainant alleges that as regards Mr. Ronald Avila Candiotti, a national official of SINATBAN, the Bank appealed to the Constitutional and Social Law Chamber against the original court order for reinstatement, which was upheld by the Labour Court; the final ruling has not yet been given. In the case of Mr. Felipe Callacondo Durand, national official of the CGTP, who obtained an order of reinstatement from the lower court, the National Bank appealed to the Labour Court which substantially altered the ruling and rejected the claim for reinstatement. The complainant also points out that according to the ruling of the Lima Superior Court of 8 May 1997, which is relevant to the case of Mr. Callacondo Durand, a judge may not substitute financial compensation for reinstatement except at the request of the worker concerned. As regards Mr. Daniel B. Rosello Woolcott, union official of SINATBAN, who appealed to the labour court, the case was not pursued owing to the defendant's non-attendance.

675. The CGTP also alleges the following violations of freedom of association: (a) the authorities of the General Corps of Voluntary Fire-Fighters of Peru (Cuerpo General de Bomberos Voluntarios del Perú) refuse to discuss the list of demands submitted by the Single National Union of Workers and Employees of the General Corps of Voluntary Fire-Fighters of Peru, whose officials are constantly harassed by these authorities; (b) workers of the Enrique Guzmán y Valle National University were dismissed en masse for anti-union reasons on the pretext of carrying out "reviews"; (c) unionized workers employed by the municipality of Villa el Salvador have suffered anti-union acts such as unwarranted transfers and harassment, refusal of leave and union licences, and refusal to deduct union subscriptions from wages; (d) trade union officials at the Federico Villareal National University have been dismissed for anti-union reasons and the authorities have broken into the union's premises.

B. The Government's reply

676. In its communications of 6 October 1998 and 4 February 1999, the Government states, firstly, that there are various provisions in national legislation to protect workers and their leaders against acts of anti-union discrimination and interference; under legislation currently in force, workers have at their disposal appropriate legal means for defending any right which they may consider to have been infringed by anti-union acts or threats. The Government adds that the CGTP itself acknowledges that the workers claiming to have been wronged in the present case have used the available legal channels for defending the rights which they consider to have been infringed and which are protected by the judicial authorities. The Government states that there is no need for the complainant to present a complaint to the ILO when the rights of such workers have already been recognized by the courts. Lastly, the Government states that the complainant presents no evidence in support of the allegations of anti-union discrimination.

C. The Committee's conclusions

677. The Committee notes that in the present complaint, the complainant alleges the following: (a) arbitrary dismissals of seven trade union officials in 1995 and refusal by the National Bank to reinstate them, despite the original ruling of the lower court; (b) refusal by the authorities of the General Corps of Voluntary Fire-Fighters of Peru to discuss the list of demands submitted by the Single National Union of Workers and Employees of the General Corps of Voluntary Fire-Fighters of Peru, whose leaders are constantly harassed by these authorities; (c) mass dismissal of workers at the Enrique Guzmán y Valle National University for anti-union reasons; (d) anti-union acts against unionized workers of the municipality of Villa el Salvador; (e) anti-union dismissals of union officials at the Federico Villareal National University and a break-in perpetrated by the authorities at the union's premises.

678. With regard to the allegation of arbitrary dismissals at the National Bank, the Committee notes that, while 90 per cent of the dismissed workers were reinstated, the cases still pending concern trade union officials, evidencing the reluctance of the Bank to reinstate them, particularly in view of the fact that the dismissals took place four years ago (in 1995) and that the lower court had ordered reinstatement in six of the seven cases. In this context, the Committee requests the Government to provide it with the text of any rulings on the six cases that are still pending before the courts as soon as they are handed down, and trusts that if it is found that they were victims of acts of anti-union discrimination that they will be reinstated immediately.

679. With respect to the allegations of the CGTP concerning the refusal by the authorities to discuss the list of demands submitted by the Single National Union of Workers and Employers of the General Corps of Voluntary Fire-Fighters of Peru, mass anti-union dismissals of employees at the Enrique Guzmán y Valle National University, anti-union acts against workers of the municipality of Villa el Salvador, anti-union dismissals of trade union officials of the Federico Villareal National University, and the break-in perpetrated by the authorities at the union's premises, the Committee requests the complainants to provide more detailed information.

The Committee's recommendations

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

(a) As regards the alleged dismissals of seven union officials at the National Bank, the Committee requests the Government to provide it with the text of any rulings on the six appeals still pending as soon as they are handed down and trusts that if it is found that they were victims of anti-union discrimination that they will be reinstated immediately.

(b) With respect to the allegations of the CGTP concerning the refusal of the authorities to discuss the list of demands submitted by the Single National Union of Workers and Employees of the General Corps of Voluntary Fire-Fighters of Peru, the mass anti-union dismissals of workers at the Enrique Guzmán y Valle National University, anti-union acts against workers of the municipality of Villa el Salvador, anti-union dismissals of union officials at the Federico Villareal National University, and the break-in perpetrated by the authorities at the union's premises, the Committee requests the complainants to provide more detailed information.

Case No. 1972

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

Complaint against the Government of Poland
presented by
-- the All Poland Trade Union Alliance (OPZZ)
-- the Warsaw Trade Union of Self-Government
Employees (WZZPS) and
-- the trade union "Sprawiedliwosc" in the Auxiliary Section
of the Prime Minister's Chancellery

Allegations: Refusal to consult with workers' organizations
before the adoption of legislation; anti-union discrimination
and dismissals of trade union leaders

681. In communications dated 19 May and 16 September 1998 by the OPZZ, in communications dated 6 June, 27 and 29 July and 10 September 1998 by the trade union "Sprawiedliwosc" and in communications dated 3 August, 4 September and 1 October 1998 by the WZZPS, these unions presented complaints of infringements of trade union rights against the Government of Poland.

682. In communications dated 5 and 16 November, 14 December 1998 and 27 January 1999, the Government provided its observations on the complaints.

683. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

Complaint of the OPZZ

684. In its communications dated 19 May and 16 September 1998, the All Poland Trade Union Alliance (OPZZ) alleges that the Polish Government is continuously violating trade union laws, in particular, by: (1) not consulting with the OPZZ concerning pieces of draft legislation, as required by article 19 of the Polish Trade Union Act; and (2) treating unequally all trade unions in violation of article 1(3) of the Polish Trade Union Act.

685. Concerning the first point, the OPZZ explains that in spite of the provision of article 19(2) of the Trade Union Act of 23 May 1991, the Government has not submitted to the OPZZ for consultation a draft regulation of the Minister of Finance on the setting of prices for heating which came into force in December 1997 and resulted in a radical increase in the price of heating as well as it did not consult the OPZZ on a draft amendment to the aforementioned regulation. Furthermore, the OPZZ complains about the shortening of the 30-day period of consultation provided for in article 19 of the Trade Union Act with regard to: a draft regulation by the Minister of Finance amending the regulation on specific rules and procedure of granting loans from the National Housing Fund; a draft Bill on thermal isolation projects; and a draft regulation of the Minister of Home Affairs and Administration on the specific scope of energy audit.

686. In addition, the OPZZ mentions another violation by the Government of the duty to consult with trade unions on draft legislation. The OPZZ cites the case of a shortened period of consultations with regard to a draft Bill on reforming the public administration. According to the OPZZ, the adoption of such pieces of legislation without consultation and economic analysis can result in economic and social threats.

687. Concerning the second point of the complaint, the OPZZ indicates that the Government has refused to subject itself to a dispute settlement procedure provided for in the Act of 23 May 1991 on collective dispute settlement with regard to disputes initiated by the OPZZ. The OPZZ alleges that the Government does follow this procedure of collective dispute settlement, but only with other trade unions, thus creating a discrimination between trade unions.

Complaint of the WZZPS

688. In its communications dated 3 August, 4 September and 1 October 1998, the Warsaw Trade Union of Self-Government Employees (WZZPS) states firstly that the President of the capital city Warsaw, in connection with a collective dispute with the WZZPS, has not started negotiations in the period provided for by the Act of 23 May 1991 on the settlement of collective disputes. The WZZPS explains that it started a collective dispute with its employer, namely the President of the capital city Warsaw, on 25 August 1997. Once the deadline for settling the dispute expired, the WZZPS notified the District Public Prosecutor's Office, in accordance with the provisions of the Act of 23 May 1991. In response to this notification, the WZZPS states that the employer agreed to a request from a superior of the Chairperson of the Board of the WZZPS concerning the termination of her employment contract without notice in disciplinary proceedings. The Chairperson of the Board of the WZZPS, Ms. Sikorka-Mrozek, has since lodged a complaint before the Labour Court.

689. The WZZPS states further that the office of Ms. Sikorka-Mrozek was also used as an official head office for the trade union. The WZZPS claims that bookcases from that office were opened without its consent and that documents were looked through, then packed into carton boxes and put in a closet. The WZZPS goes on to explain that many objects were lost, including all trade union seals and that it had to request the police to safeguard certain documents. Furthermore, according to the complainant, after the Register Court was wrongfully notified in January 1998 of the WZZPS's non-existence, the Voivodship Court, in its decision of 29 June 1998, refused the deletion of the WZZPS from the trade union register. Finally the WZZPS states that for several months, it could not perform its statutory tasks, and until today is unable to function under its statutory address.

Complaint of the trade union "Sprawiedliwosc"

690. In its communications of 6 June and 27 July 1998, the complainant explains that the trade union "Sprawiedliwosc" was created on 15 March 1998. On 25 March 1998, appropriate documents were submitted to the Voivodship Court for the registration of the union. Although article 32(1) of the Trade Union Act of 1991 provides for a six-month protective period for the founding committee of the union, on 30 March 1998, Mr. Marek Grabowski, chairman of the founding committee, received notice of termination of his employment contract on the same day that he informed the head of personnel of the creation of the trade union. The complainant also mentions that following a request from the trade union OPZZ to the State Labour Inspection concerning this matter, an investigation was carried out and the senior labour inspector confirmed on 22 April 1998 an infringement of the Trade Union Act by the employer, namely the Auxiliary Establishment of the Prime Minister's Chancellery.

691. In its communication of 29 July 1998, the complainant states that Mr. Grabowski is still without a job and has been deprived of the possibility of telephone communication with the other trade union members and has been prohibited from entering the trade union premises.

692. In its communication of 10 September 1998, the complainant provided a copy of the decision of 2 September 1998 by the District Labour Court in Warsaw, reinstating Mr. Marek Grabowski in the Auxiliary Establishment of the Prime Minister's Chancellery under previous conditions of work and pay.

B. The Government's reply

Complaint of the OPZZ

693. In a communication dated 14 December 1998, the Government, with regard to the complaint presented by the "All Poland Trade Union Alliance" (OPZZ), acknowledges that under article 19 of the Trade Union Act and with regard to guidelines or draft legislation or regulations, it must consult with nationwide trade union organizations on matters of trade union concern. However, the Government points out that due to the enormous amount of reforms carried out as well as the magnitude of legislative work initiated by the Government, it happens occasionally that the Government must ask the social partners to shorten the period of consultations, but in the vast majority of cases legislation is adopted after regular and unshortened consultation with social partners.

694. Concerning the specific pieces of legislation referred to in the complaint, the Government admits that the draft regulation of the Minister of Finance on the setting of prices for heating had not been subjected for consultation with trade unions. The Government explains that it had a duty to limit the extent of the expected increase in heating prices since an uncontrolled liberalization of prices could have had a negative social impact. Since the Government had to free up heating prices as provided for in the Energy Act of April 1997, the aforementioned regulation limiting the scope of price increases had to be introduced without delay because of the forthcoming winter.

695. In the case of the draft regulation amending the procedures of granting loans from the National Housing Fund, the Government admits once again that the draft was submitted to trade union organizations for consultation on 19 January 1998, with a request for opinions by 22 January 1998. The Government indicates that the shortening of the consultation period was justified since it sought for the regulation to become law as early as March (before the end of winter), so that projects directed at more efficient production of heating energy sources could be financed and carried out over spring and summer. The Government also points out that the OPZZ never questioned the urgency of such a regulation since it submitted its comments on 20 January 1998.

696. In the case of the draft Bill introducing acts reforming public administration, the Government explains that the need to shorten consultations resulted, on the one hand, from the tight legislative calendar of the Parliament and, on the other hand, from the fact that the Bill could not be finalized before the adoption of other Bills determining spheres of competence of new organs to be created in relation with the reform of public administration.

697. Finally, concerning the issue that the Government treats unions unequally, it explains that the 1991 Act on the settlement of collective disputes does not allow for the Government to be a party to a collective dispute. However, the Government explains that it has reached agreements with several trade union organizations concerning settlement procedures in cases of conflict. In fact, on 29 May 1992, the Government signed an agreement of this type with the "Solidarnosc" trade union. However, the Government indicates that the OPZZ did not take up the offer and therefore does not have a similar agreement with the Government which entails that there are no legal nor contractual grounds for the OPZZ to enter into collective disputes with the Government.

Complaint of the WZZPS

698. In a communication dated 5 November 1998, the Government, with regard to the complaint presented by the Warsaw Trade Union of Self-Government Employees (WZZPS), explains that the first matter concerning the collective dispute with the President of the capital city Warsaw, was resolved on 2 October 1998. In this regard, the Government states that an agreement with the plaintiff was concluded before the district court of Warsaw Labour Division by which the parties agreed to the termination of the employment contract on 31 December 1998 due to the liquidation of the work post of the plaintiff, with full payment of redundancy pay.

699. Concerning the termination of the employment contract of the Chairperson of the Board of the WZZPS, the Government explains that this termination was done in conformity with article 52, paragraph 1, of the Labour Code and that this decision was taken by the employer of Ms. Sikorka-Mrozek following her unacceptable conduct, consisting in using sick leave contrary to their designation. While using her sick leave, Ms. Sikorka-Mrozek was carrying out trade union activities on the work premises. According to the Government, Ms. Sikorka-Mrozek, as Chairperson of the Board of the WZZPS, decided unilaterally to use her work post in the Education Section of the Board of Zolibory District in room 315 as the head office of the trade union. Her employer acknowledged this fact and accepted it in order to ensure appropriate cooperation with the union. However, since the uncooperative conduct of the Chairperson and her trade union activity made difficult the work of the Education Section, her employer proposed the use of another room exclusively for trade union purposes. This was refused by the Chairperson who then took several months of sick leave taking with her the key to room 315. Since official documents were in that room and the lack of access paralysed the work of the Education Section, on 6 October 1997 room 315 was opened by a commission and the trade union documentation which was there was secured. Ms. Sikorka-Mrozek lodged a complaint against this action, which was rejected by the district prosecutor and by the Voivodship prosecutor in appeal. The Government also mentions that Ms. Sikorka-Mrozek has since lodged a complaint to the Labour Court concerning the termination of her employment contract and that the decision on that case is still pending.

Complaint of the trade union "Sprawiedliwosc"

700. In a communication dated 6 November 1998, the Government, with regard to the complaint presented by the trade union "Sprawiedliwosc", explains that according to the Auxiliary Section of the Prime Minister's Chancellery, Mr. Marek Grabowski, chairman of the trade union "Sprawiedliwosc", created this trade union and took the function of chairman as a way to gain special protection against the receipt of the notice of termination of his employment contract. The Auxiliary Section of the Prime Minister's Chancellery states that from 9 January 1995 to 30 June 1998, Mr. Grabowski was the head of a publishing and editorial section. After an internal inquiry on 13 March 1998, Mr. Grabowski was informed of the negative appraisal of the work of his section and of the intention of his employer to terminate his employment contract. Since Mr. Grabowski was on sick leave from 17 March to 28 March 1998, the notice of termination was only submitted to him on 30 march 1998 (a Monday). On the same day, his employer received the information concerning the creation of the founding committee of the trade union "Sprawiedliwosc". In this context, the Government explains that Mr. Grabowski lodged a complaint to the Labour Court demanding that the notice of termination be annulled in view of the protection he was entitled to according to the Trade Union Act.

701. In a communication dated 27 January 1999, the Government indicates that an appeal was lodged by the Auxiliary Section of the Prime Minister's Chancellery against the decision of the Labour Court of 2 September 1998 which requested the reinstatement of Mr. Grabowski.

C. The Committee's conclusions

702. The Committee notes that this case relates to three different sets of allegations by three different plaintiffs, concerning namely, the refusal to consult with workers' organizations before the adoption of legislation, anti-union discrimination and dismissals of trade union leaders.

Complaint of the OPZZ

703. Concerning the first complaint, the Committee notes that the Government acknowledges in all cases cited by the complainant that it did not consult or had to shorten the consultation periods relating to various pieces of draft legislation. In each case, the Government invokes compelling reasons on his side for not fully respecting its obligations of consultation with the social partners. On this aspect of the case, the Committee recalls the importance of consulting organizations of employers and workers during the application of legislation which affects their interest. While taking due note of the Government's explanations and the fact that in the vast majority of cases, the principle of consultation seems to be respected, the Committee draws nevertheless the attention of the Government to the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which provides that measures should be taken to promote effective consultation and cooperation between public authorities and employers' and workers' organizations without discrimination of any kind against these organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th ed., paras. 928 and 929]. The Committee expresses the hope that the Government will do its utmost to respect these principles in the future.

704. Concerning the second aspect of the complaint by the OPZZ, the Committee notes that according to the Government, no agreement exists between the OPZZ and itself regarding procedures for the settlement of collective disputes while such agreements do exist with other unions. In these circumstances, the Committee can only encourage the parties to start negotiations with a view of concluding such an agreement. The Committee requests the Government to keep it informed of any developments concerning this aspect of the case.

Complaint of the WZZPS

705. With regard to the complaint formulated by the WZZPS, from the information contained in the file, the Committee understands that the first aspect of the complaint, which concerned the lack of negotiations with regard to a collective labour dispute, was solved when an agreement with the plaintiff was concluded before the District Court of Warsaw/Labour Division.

706. Concerning the second aspect of the complaint, namely the termination of the employment contract of Ms. Sikorka-Mrozek and the violation of trade union premises by the employer, the Committee notes the conflicting versions of the two parties. The Committee recalls firstly that one of the fundamental principles of freedom of association is that workers, as well as trade union officials, 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. But the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds trade union office confers immunity against dismissal irrespective of the circumstances. The Committee has pointed out in the past that one way of ensuring 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, of course, for serious misconduct [see Digest, op cit. paras. 724, 725 and 727]. The Committee notes that the case of Ms. Sikorka- Mrozek is still pending in the Labour Court. In this regard, the Committee requests the Government to send it a copy of the judgement as soon as it is handed down and, if it appears from the Court decision that the dismissal is found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in her job of Ms.Sikorka-Mrozek and to keep the Committee informed of the measures taken in this respect.

707. As regards the use of Ms. Sikorka-Mrozek's office in the Education Section as the trade union head office and the subsequent intrusion by her employer in that office during her absence, while the Committee takes note of the Government's explanations, it still recalls the importance it attaches to the principle that the property of trade unions should enjoy adequate protection and that the occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities [see Digest, op. cit. paras. 183-184]. Finally, the Committee requests the Government to confirm that the trade union WZZPS can perform its legitimate trade union activities in appropriate premises and to keep it informed in this regard.

Complaint of the trade union "Sprawiedliwosc"

708. Concerning the complaint of the trade union "Sprawiedliwosc", the Committee notes that with regard to the dismissal of Mr. Marek Grabowski, chairman of the founding committee of "Sprawiedliwosc", a decision of 2 September 1998 of the Warsaw District Labour Court requested that Mr. Grabowski be reinstated in his post under previous conditions of work and pay. The Committee also notes that Mr. Grabowski's employer, the Auxiliary Section of the Prime Minister's Chancellery, has lodged an appeal against this court decision. While the employer declares that Mr. Grabowski was dismissed solely on grounds of incompetence and that the creation of the union was merely a protection against an imminent dismissal, the complainant emphasizes the fact that he received his notice of termination of employment contract on the same day he informed his employer of the creation of the union "Sprawiedliwosc". In view of the contradictory statements as to the reasons for terminating the employment contract of Mr. Grabowski, the Committee can only recall that no person should be dismissed or prejudiced in his or her employment by reason of legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee requests the Government to keep it informed of the outcome of the appeal judgement in this case and to take measures to reinstate Mr. Grabowski if his dismissal is proven discriminatory. The Committee also requests the Government to indicate if the union "Sprawiedliwosc" is able to perform its activities normally.

The Committee's recommendations

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

(a) Concerning the complaint of the OPZZ, the Committee requests the Government to ensure that measures are taken in the future to promote effective consultation and cooperation between the public authorities and the social partners before adopting legislation affecting workers' or employers' interests; the Committee also encourages the Government and the OPZZ to start negotiations in view of reaching an agreement on procedures for the settlement of collective disputes and requests the Government to keep it informed in this regard.

(b) Concerning the complaint of the WZZPS, the Committee asks the Government to send it a copy of the judgement concerning the dismissal of Ms. Sikorka-Mrozek and, if it appears from the court decision that the dismissal is found to be related to the exercise of legitimate trade union activities, to obtain her reinstatement. The Committee requests the Government to keep it informed of the measures taken in this respect. The Committee also requests the Government to confirm that the WZZPS can perform its legitimate trade union activities in appropriate premises and to keep it informed in this regard.

(c) Concerning the complaint of the trade union "Sprawiedliwosc", the Committee asks the Government to keep it informed of the outcome of the appeal judgement in the case of the dismissal of Mr. Grabowski and to take the measures to reinstate him if his dismissal is proven discriminatory. The Committee also requests the Government to indicate if the trade union "Sprawiedliwosc" is able to perform its activities normally.

Geneva, 4 June 1999.

Max Rood,
Chairperson.

Points for decision:

Paragraph 101;	Paragraph 326;	Paragraph 532;
Paragraph 129;	Paragraph 340;	Paragraph 569;
Paragraph 150;	Paragraph 378;	Paragraph 617;
Paragraph 162;	Paragraph 390;	Paragraph 641;
Paragraph 195;	Paragraph 447;	Paragraph 669;
Paragraph 213;	Paragraph 464;	Paragraph 680;
Paragraph 228;	Paragraph 504;	Paragraph 709.
Paragraph 274;

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