Case No. 2006

Interim report

Complaint against the Government of Pakistan
presented by
-- the All Pakistan Federation of Trade Unions (APFTU) and
-- the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-Pakistan)

Allegations: Denial of trade union and collective bargaining
rights for workers of the Pakistan Water and
Power Development Authority (WAPDA) and of the
Karachi Electric Supply Corporation (KESC)

324. In a communication dated 11 February 1999, the All Pakistan Federation of Trade Unions (APFTU) presented a complaint of violations of freedom of association against the Government of Pakistan. Public Services International (PSI) and the International Confederation of Free Trade Unions (ICFTU) associated themselves with this complaint in communications dated 16 February 1999 and 27 April 1999, respectively. The APFTU submitted additional information in communications dated 8 and 10 April, 25 May and 25 June 1999. The Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-Pakistan) also presented a complaint of infringements of trade union rights in a communication dated 8 June 1999.

325. The Government supplied its observations in a communication dated 2 September 1999.

326. Pakistan 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

327. In its complaint, the APFTU asserts that the Government has violated Conventions Nos. 87 and 98 by issuing a Presidential Ordinance No. XX dated 22 December 1998 which suspended the trade union and collective bargaining rights of more than 130,000 workers employed in the largest public utility of the country, namely the Pakistan Water and Power Development Authority (WAPDA) which is responsible for the generation, transmission and distribution of electricity and development of water resources and the provision of other services (a copy of the Presidential Ordinance is annexed to the complaint).

328. More specifically, the APFTU alleges that the said Presidential Ordinance suspended the application to WAPDA of the Industrial Relations Ordinance, 1969, which regulates the formation, registration and functioning of a trade union organization as a collective bargaining agent and the enforcement of agreements reached between a union and management. The APFTU further alleges that the application to WAPDA of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, pertaining to workers' job security was suspended by Presidential Ordinance No. XX and that amendments were incorporated in the WAPDA Act, 1958 (section 17-(1A)) whereby the services of WAPDA workers could be dispensed with through retirement without assigning any reason. In addition, the rights of the APFTU's affiliate, the WAPDA Hydro Electric Central Labour Union, as collective bargaining agent were cancelled. The APFTU points out that the WAPDA Hydro Electric Central Labour Union, which is the largest industry-wide trade union in the country, has been representing WAPDA workers for the past 50 years and was again recently declared to be the collective bargaining agent for WAPDA workers through a referendum held at the national level on 29 December 1997. The APFTU indicates that the management of WAPDA also issued a notification to the effect that the Presidential Ordinance No. XX suspended the operation of the Industrial Relations Ordinance, 1969, and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for a period of two years commencing from 22 December 1998 in WAPDA (a copy of the said notification is attached to the complaint).

329. The APFTU then contends that Presidential Ordinance No. XX handed over the running of WAPDA to the armed forces. In effect, the Government resorted to the recruitment of approximately 35,000 army officers to manage WAPDA allegedly to check the pilferage of electricity. The APFTU points out, however, that the WAPDA Hydro Electric Central Labour Union had been cooperating with management to eliminate such pilferage of energy. Moreover, these army officers were recruited by the Government at exorbitant salaries with perks which were 150 times higher than those of the regular WAPDA workers.

330. The APFTU asserts that the promulgation of Presidential Ordinance No. XX had the following additional serious consequences. In a communication dated 7 February 1999, senior management of WAPDA issued an order to all general managers, chief executives and heads of divisions that "no subscriptions shall be deducted from the wages of workers under check-off, as trade union activities are banned for a period of two years with effect from 22 December 1998" (a copy of the order is attached to the complaint). Furthermore, in a notification dated 20 March 1999, the Deputy Registrar of the National Industrial Relations Commission cancelled the registration of the WAPDA Hydro Electric Central Labour Union and informed it that it ceased to exist with effect from 22 December 1998 (a copy of the notification of cancellation of registration is attached to the complaint). The APFTU states that its affiliate filed an appeal against this decision to the Lahore High Court. In addition, in a communication dated 5 May 1999, the management of WAPDA ordered the closing down of all labour welfare centres at various power stations which provided recreational facilities for the workers at WAPDA (a copy of this communication is attached to the complaint).

331. Finally, the APFTU contends that while Presidential Ordinance No. XX of 22 December 1998 elapsed on 22 April 1999, the Government promulgated Ordinance No. V of 1999 on 24 May 1999 which has the same contents, purpose and effects as the first Ordinance. The APFTU concludes that the Government should revoke such measures which apart from constituting a flagrant violation of freedom of association were also deemed to be unconstitutional restrictions on its affiliate by various sections of civil society including the Chairman of the Human Rights Commission of Pakistan, the former Chief Justice of Pakistan and the President of the Supreme Court Bar Association.

332. In its communication dated 8 June 1999, the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-Pakistan) alleges that through two Presidential Ordinances issued on 27 May 1999, the Government has debarred the Karachi Electric Supply Corporation (KESC) from the purview of the Industrial Relations Ordinance, 1969, and has allowed management to forcibly retire any KESC employee without assigning any reason. This grave situation has resulted in the forced closure of the collective bargaining agent's union office as well as a ban on the CBA union by the new management of the KESC, with effect from 31 May 1999. Hence, the FOGSEW's affiliate, the KESC Democratic Mazdoor Union, which was duly elected as CBA in the establishment as a result of a referendum held on 23 February 1999 has been seriously affected by the Government's actions. FOGSEW contends that these very serious infringements of trade union rights warrant the appointment of a Commission of Inquiry against the Government of Pakistan.

B. The Government's reply

333. In its communication dated 2 September 1999, the Government first of all proceeds to give background information about WAPDA. It indicates that WAPDA was established under the WAPDA Act, 1958, for the development of water and power resources of the country. To achieve these objectives, the authority undertook construction and operation of dams, barrages, canals, tube wells, power stations, grid stations, transmission lines and supply and distribution of electricity to the consumers of international, agricultural, commercial and domestic sectors. The Government stresses that WAPDA has contributed greatly towards the development of the economy of the country by constructing seven dams, 14 thermal power stations, 11 Hydel power stations and 456 grid stations. As such, WAPDA can rightly be depicted as the backbone of Pakistan's economy.

334. The Government then briefly describes the management structure of WAPDA. WAPDA is headed by a chairperson, a deputy chairperson and three members, one each for power, water and the finance wings. The members work through managing directors and general managers in their respective disciplines. The total number of employees in WAPDA is 137,693: (a) number of officers in basic pay scale BPS-16 to 21: 8,816; (b) number of employees (workers) in BPS-1 to 16: 128,877; and (c) number of unionized employees: 95,545.

335. The Government points out that the installed capacity of electricity in Pakistan is 14,957 megawatts. Generation fluctuates according to demand. The estimate of electricity lost because of technical reasons such as line and system losses is 20 per cent. Pilferage/power theft added another 20 per cent to this figure. Pilferage was made possible with the active connivance of the field staff of WAPDA -- the ones who interact actively with the public. This electricity pilferage had the following consequences: (a) loss of revenue to the organization, depriving it not only of maintaining its services but also from upgrading its system to minimize technical losses; (b) increase in load shedding, especially in the summer months when temperatures across most of the country range above 40oC. In the rural sector, dependent largely on canal water or underground water, load shedding severely hampered agricultural production because tube wells remained inactive for long durations; and (c) increased consumer complaints.

336. The Government explains that the usual methods of pilferage were: (a) unauthorized connections; (b) meter tampering; and (c) wrong billing. The burden of these practices was borne by the common man. The public was fast losing all confidence in WAPDA to carry out its task. There were frequent demands by consumer groups for the privatization of the organization. This rampant corruption, inefficiency and the resultant loss in revenue had seriously affected the viability of the organization.

337. The Government indicates that by late 1998, WAPDA was running a deficit of Rs.45 billion (approximately US$870 million). This was expected to rise to Rs.74 billion (approximately US$1.43 billion) by June 1999. The resultant financial collapse would have led to the liquidation of WAPDA. Since the organization would have been devoid of funds to pay the wages, tens of thousands of jobs would have been lost. It would have also brought the entire country to a standstill, making the life of the community nearly impossible.

338. The Government goes on to describe the role of the unions in these practices. The management of WAPDA had tried various measures to restore the financial viability of the organization and to reintroduce a culture of efficiency, accountability and discipline. Unfortunately it was not successful. The management was helpless in taking disciplinary action against the delinquents and corrupt elements, largely due to interference and pressure by the union. It had become practically impossible to post out a corrupt meter reader or an assistant lineman to other areas. This led to a near paralysis of WAPDA's administration. In addition meter readers and other similar officials could not be disciplined by their respective administrative heads as they tried to use their union membership to avoid disciplinary action. On occasion office-bearers of the CBA gave protection to such elements. This perpetuated mismanagement and massive theft of electricity. While the National Industrial Relations Commission (NIRC) had approved that only 75 office-bearers of the CBA union were to be notified, the CBA appointed over 10,000 office-bearers at various organizational levels. Due to union pressure these office-bearers could not be posted out by the management. Some of them were directly involved in giving protection to the corrupt elements within WAPDA.

339. In order to avert a complete collapse of WAPDA which would have caused great human suffering and economic hardship, the federal Government was constrained to seek the assistance of the armed forces under article 245 of the Constitution of the Islamic Republic of Pakistan.(1)  The army was therefore ordered to assist the WAPDA management in restoring the financial health of the organization through checking pilferage/power theft. The Government stresses that this was an act of the last resort and taken solely to make the WAPDA viable once again.

340. The involvement of the army in WAPDA occurred in two phases. In the first phase, which ended on 25 July 1999, 31,444 army personnel were deputed to WAPDA. After 25 July 1999, only about 10 per cent army personnel were retained and the rest have returned to their units. The army personnel helped the organization in: (a) removing unauthorized connections, which turned out to be tens of thousands; (b) replacing defective metres; (c) ensuring timely and correct billing; (d) checking the metres by surveillance teams; (e) serving detection bills where theft was unearthed; (f) maintenance of the system to reduce technical losses; and (g) the recovery campaign for collection of public revenue.

341. The Government points out that the campaign launched by the army and WAPDA teams has resulted in: (a) 43 per cent increase in billing and receipts for January-June 1999, in comparison to January-June 1998, i.e. an increase of over Rs.20.9 billion (approximately US$400 million) in billing; (b) reduction of Rs.93 billion (US$1.7 billion) in receivables; (c) over 7 per cent decrease in line losses; and (d) reduction of pilferage to less than 1 per cent.

342. In addition to the abovementioned reduction in negative trends, the following positive developments were also registered: (a) 406,805 new electricity connections were given in January-June 1999 as against 235,066 for the same period in 1998; (b) consumer complaints dropped by 48,837; and (c) there is no load shedding anywhere in the country.

343. With regard to the present status of the union in WAPDA, the Government emphasizes that the activities of the union have only been suspended in response to a specific situation for a limited period. The Government stresses that Ordinance No. XX of 1998 does not take away the right of workers to organize, i.e. the legal organizational structure of the union remains intact. Moreover, the status of the CBA union with Mr. Khurshid Ahmed as its general secretary is virtually unaffected. He continues to represent the workers' cause at all forums. He was also a delegate to the 87th Session of the ILC held in June this year, representing the workers of Pakistan. In addition, following the suspension of union activities, no action was taken against any member of the union for the exercise of his/her legitimate right of freedom of association. In fact not a single incidence of use of force, imprisonment or harassment took place. There continues to be a healthy and constructive interaction between the management and the workers. Committees have been constituted at the level of distribution companies with formal participation of the workers. These committees are functioning and showing positive signs of harmony between the management and the workers. Finally, the situation is being continuously monitored and reviewed. There is a possibility that with the cooperation and support of the workers, trade union activities may be fully restored before the two-year period specified in Ordinance No. XX of 1998.

344. The Government nevertheless indicates that in view of the gravity of the situation, which required sufficient time for the organization to become viable and productive again, Ordinance No. XX, 1998, was repromulgated as Ordinance No. V (1999) with effect from 24 May 1999. According to the Constitution, the life of an Ordinance is four months, therefore the measures taken by the Government with regard to WAPDA are essentially of a temporary nature.

345. The Government concludes that the invocation of article 245 of the Constitution was the last resort available to it. In the absence of such action, WAPDA would have ceased to exist with extremely grave consequences not only for the tens of thousands of workers of the organization but the nation as a whole. While the Government fully respects the fundamental workers' right of freedom of association, the WAPDA-related decisions were taken as an exceptional measure which was essential for the welfare of the community and the health of the country's economy. Finally, the Government indicates that it is committed to restoring the WAPDA union as soon as the financial situation of WAPDA allows it and even before the completion of the two-year period specified in Ordinance No. XX of 22 December 1998.

C. The Committee's conclusions

346. The Committee notes that the allegations in this case concern the denial of trade union and collective bargaining rights for workers of the Pakistan Water and Power Development Authority (WAPDA) as well as for workers of the Karachi Electric Supply Corporation (KESC) pursuant to the issuance of Presidential Ordinances which excluded the application of the Industrial Relations Ordinance, 1969, to these two public utilities.

347. As regards the situation of WAPDA workers, the Committee notes the allegation of the All Pakistan Federation of Trade Unions (APFTU) that Presidential Ordinance No. XX dated 22 December 1998 suspended the trade union and collective bargaining rights of more than 130,000 WAPDA workers since the said Presidential Ordinance suspended the application to WAPDA of the Industrial Relations Ordinance, 1969, which regulates the formation, registration and functioning of a trade union organization as a collective bargaining agent and the enforcement of agreements reached between management and the union. The Committee notes that the Government does not refute this allegation. Rather it appears to justify the promulgation of Presidential Ordinance No. XX by indicating that it was an exceptional measure which was essential for the welfare of the community and the health of the country's economy. In this regard, the Committee would recall that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 186]. Nevertheless, as regards countries which are in a state of political crisis or have just undergone grave disturbances (civil war, revolution, etc.), the Committee has considered it necessary, when examining the various measures taken by the governments, including some against trade union organizations, to take account of such exceptional circumstances when examining the merits of the allegations [see Digest, op. cit., para. 197]. However, in the case at hand, the Committee does not consider that the pilferage of electricity in WAPDA and the resultant loss in revenue constitute such circumstances of extreme gravity as to warrant the ensuing restrictions on trade union and collective bargaining rights. Moreover, while noting the Government's statement that a number of office-bearers of the CBA union (the WAPDA Hydro Electric Central Labour Union) were either directly or indirectly involved in corrupt activities in WAPDA resulting in the massive theft of electricity, the Committee is of the view that to deprive many thousands of workers of their trade union organization because illegal activities have been carried out by some leaders or members constitutes a clear violation of the principles of freedom of association [see Digest, op. cit., para. 667]. The Committee considers that if it was found that certain members of the trade union had committed excesses going beyond the limits of normal trade union activity, they could have been prosecuted under specific legal provisions and in accordance with ordinary judicial procedure, without involving the suspension and subsequent dissolution of an entire trade union movement [see report of the Commission of Inquiry on the observance by Poland of Conventions Nos. 87 and 98, Official Bulletin (Vol. LXVII), 1984, para. 492].

348. The Committee further notes the Government's statement that Ordinance No. XX of 1998 does not take away the right of workers to organize and that the legal organizational structure of the union remains intact. The Committee would first of all point out that this statement is contradictory in that the Government itself acknowledges in its reply that trade union activities in WAPDA have been suspended albeit in response to a specific situation. Moreover, in the Committee's view, the Government's claim that Presidential Ordinance No. XX does not take away the right of workers to organize does not appear to be borne out by the facts on the ground. Indeed, the Committee notes that according to the APFTU's allegations -- which the Government does not comment upon -- the management of WAPDA issued an order in February 1999 that trade union dues would no longer be deducted from the wages of workers pursuant to Presidential Ordinance No. XX (see Annex I). Moreover, the management of WAPDA issued another order in May 1999 ordering the closing down of all labour welfare centres at various power stations. The Committee considers that the suspension of the practice of deducting trade union dues coupled with the suspension of trade union activities risks jeopardizing the very existence of the APFTU's affiliate, the WAPDA Hydro Electric Central Labour Union. Finally, the Committee fails to see how the legal organizational structure of the union remains intact since the Deputy Registrar of the National Industrial Relations Commission cancelled the registration of the union in March 1999 (see Annex II). In this regard, the Committee has emphasized that the cancellation of registration of an organization by the registrar (or deputy registrar) of trade unions is tantamount to the suspension or dissolution of that organization by administrative authority which constitutes a clear violation of Article 4 of Convention No. 87 and that cancellation of a trade union's registration should only be possible through judicial channels [see Digest, op. cit., paras. 669 and 670]. In this respect, the Committee notes that the WAPDA Hydro Electric Central Labour Union has filed an appeal to the Lahore High Court against the decision of the Deputy Registrar. It requests the Government to keep it informed of the outcome of the decision handed down by the Lahore High Court.

349. For all the abovementioned reasons, the Committee strongly deplores the promulgation of Presidential Ordinance No. XX of 1998 which suspended the trade union rights of WAPDA workers and prevented the WAPDA Hydro Electric Central Labour Union from carrying out its normal trade union activities including receiving its trade union dues. The Committee urges the Government to refrain in the future from having recourse to measures of suspension or dissolution through administrative channels which constitute serious infringements of the principles of freedom of association. The Committee notes that Presidential Ordinance No. XX elapsed on 22 April 1999 since, according to the Pakistani Constitution, the life of an ordinance is four months. The Committee notes with serious concern, however, that Ordinance No. XX, 1998, was repromulgated as Ordinance No. V, 1999, with effect from 24 May 1999. The Committee requests the Government to confirm that Ordinance No. V elapsed on 24 September 1999. If this is not the case, the Committee would urge the Government to repeal Ordinance No. V, 1999, immediately, in order to re-establish the registration of the WAPDA Hydro Electric Central Labour Union. It also requests the Government to ensure that the practice of deducting trade union dues is resumed without delay. It requests the Government to keep it informed of measures taken to give effect to its recommendations. It requests the Government to keep it informed in this regard.

350. The Committee notes with serious concern the allegations of the Federation of Oil, Gas, Steel and Electricity Workers (FOGSEW-Pakistan) in a communication dated 8 June 1999 to the effect that the Government has excluded the Karachi Electric Supply Corporation (KESC) from the purview of the Industrial Relations Ordinance, 1969, through two Presidential Ordinances issued on 27 May 1999 with the result that the FOGSEW's affiliate, the KESC Democratic Mazdoor Union, has been banned by the new management of KESC with effect from 31 May 1999. Noting that the Government has not replied to these serious allegations, the Committee urges the Government to provide its observations thereon without delay.

351. The Committee deplores the fact that certain WAPDA and KESC union officials were forcibly pre-retired.

The Committee's recommendations

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

Annex I

Pakistan Water and Power Development Authority
Labour and Welfare Directorate
WAPDA Sunny View Lahore

No. DLW-09770/1517-1816

Dated: 7.2.1999

Office order

Time and again it has been reported that this office circular No. DLW-09720/35-1385, dated 8.1.1999 is not being implemented in letter and spirit.

Due to promulgation of Ordinance No. XX of 1998 the trade unions functioning in WAPDA are non-existent. They cannot perform any function in the establishments of WAPDA. It is again clarified that no subscription shall be deducted from the wages of the workers under check-off as the trade union activities are banned for a period of two years w.e.f. 22.12.1998.

All GMs/CEs/Heads of Divisions are advised to ensure strict compliance of the Ordinance No. XX of 1998.
 

Shabbir Ahmed
Director (Labour and Welfare) WAPDA

Annex II

No. 3(19)/73
Government of Pakistan
National Industrial Relations Commission
Sector G-5/2, Islamabad

From: Mr. Zakaullah Khan Khalil
Deputy Registrar

Dated 20.3.1999

The General Secretary
Pakistan Hydro Electric Central Labour Union
Bakhtiar Labour Hall, 28 Nisbat Road, Lahore

Subject: Pakistan Hydro Electric Central Labour Union

The undersigned is directed to say that through an Ordinance No. XX of 1998 effective from 22.12.1998, a new section 17A has been inserted in WP Act XXXI of 1958. The aforesaid section is reproduced below:

You are hereby informed that after commencement of the aforesaid Ordinance your union namely "Pakistan Hydro Electric Central Labour Union" registered by the Commission vide Certificate No. 46/73 as an industry-wise trade union of workmen employed by WAPDA has ceased to exist w.e.f. 22.12.1998 as IRO, 1969, no more applies on the employment of WAPDA.

By Order of the Commission

 

(Zakaullah Khan Khalil)
Deputy Registrar

Copy to the Chairman, WAPDA, WAPDA House, Lahore

Case No. 1931

Definitive report

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

Allegations: Legislation restricting the rights of
employers and their organizations

353. The Committee first examined this case at its meeting of May 1998 when it presented an interim report to the Governing Body [see 310th Report, paras. 474 to 507, adopted by the Governing Body at its 272nd Session (June 1998)].

354. Subsequently, the Government sent further observations in a communication dated 18 May 1999.

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

A. Previous examination of the case

356. At its previous examination of the case, the Committee presented the following conclusions regarding the allegations remaining pending [see 310th Report, paras. 498 to 501]:

357. In the light of these interim conclusions regarding these aspects of the case, the Committee, in June 1998, invited the Governing Body to approve the following recommendations [see 310th report, para. 507]:

358. Furthermore, the Committee, at its March 1999 meeting, while noting that the Government had requested the Office's technical assistance, requested the Government to provide a response to the issues raised in the case so that the technical assistance requested could be based on the definitive conclusions and recommendations of the Committee [see 313th Report, para. 5].

B. The Government's reply

359. With regard to the information requested by the Committee at its previous examination of the case, the Government makes reference in its communication dated 18 May 1999 to sections 510 and 511 of Cabinet Decree No. 252, 1971 (Labour Code), regarding the imputability of a strike to the employer.

360. In respect of these sections, the Government indicates that the imputability of responsibility for a strike is a judicial process falling to labour tribunals, whose rulings, if contested, may be appealed against before the High Labour Tribunals, with final cassation being sought before the third chamber of the Supreme Court of Justice. This is a proceeding designed to give rapid relief and in which it is incumbent upon the workers to prove that the strike was due to failure to comply with "the collective agreement, direct settlement or arbitration award" or legal texts which have been "ignored or infringed once or repeatedly" by the employer, as addressed by the conciliation procedure ensuing from the presentation of the statement of claims, which failed to result in any agreement. Proof may also be supplied of the employer not having responded to the statement of claims or having withdrawn from the conciliation process.

361. The Government adds that grounds for imputability may also result during a strike, as stated in section 511, e.g. if the closure of the enterprise is not permitted, whereas it is a direct object of the strike, or if new contracts of employment are signed with a view to resuming the work interrupted by strike action, with the exception of contracts for the purpose of "avoiding irreparable damage to machinery and basic equipment", when strike participants do not permit such work and the administrative authorities consider it urgent. In this case, the employer applies to the administrative authorities for authorization to carry out such work. In the majority of instances, when the request is approved, the enterprise staff itself is called upon to conduct such tasks which need to be maintenance and not production work. Responsibility is also imputable to an employer who prevents workers from conducting the activities listed in section 496 of the Labour Code, as follows:

Section 496: Strike participants shall be guaranteed outside the enterprise:

  1. the right to peaceful demonstration;
  2. the right to distribute propaganda amongst fellow-workers and the general public as well as to use posters indicating their demands;
  3. the right to set up propaganda- and watch-pickets surrounding work premises; and
  4. the right to collect donations.

Furthermore, if the employer attempts to prevent strike action, she/he may also be declared responsible for the strike.

362. According to the Government, any employer declared responsible shall pay wages for the strike period; this is decided by the judge when she/he determines liability for the strike. Consequently, the proceedings are designed to establish whether the employer has or has not given grounds, as listed in the law, to be attributed responsibility. As stated, this takes place in the form of adversarial judicial proceedings.

363. The Government indicates that, specifically for the collective bargaining period, there are no "competent bodies in the event of violations of the legislation or of collective agreements, in the event of disputes over their interpretation or in the event that the employer fails to cooperate in the collective bargaining process". Nevertheless, Act No. 53, 1975, does empower the Ministry of Labour and Labour Development to conduct proceedings regarding the "legal interpretation or validity of clauses written into a collective agreement or other collective pact or accord". Moreover, section 527 of the Labour Code states that:

In this connection, there has been no discussion in Panama regarding the consequences of such proceedings in the event of a statement of claims being presented or of scrutiny of collective bargaining. Would the proceedings be put into abeyance if reference were made to items also addressed in the statement of claims or the bargaining? Which authority is competent to determine these consequences? These are issues which should be elucidated through administrative or judicial channels.

C. The Committee's conclusions

364. The Committee observes that the issues left pending at the previous examination of the case relate to the conformity with the principles of freedom of association of the legal texts applicable to cases in which the employer is required to pay wages in respect of strike days; more specifically, they concern cases in which the strike has the following objects: (1) to demand fulfilment of any collective agreement, direct settlement or arbitration award (section 510(1) of the Labour Code); (2) obtain fulfilment of and compliance with any statutory provision which has been ignored or infringed once or repeatedly throughout or in any part of the enterprise (section 510(1) of the Labour Code); and (3) if the employer does not reply to the statement of claims or withdraws from the conciliation procedure (section 510(2) of the Labour Code). As regards these matters, the complainant organizations also point out that under the current regulations the labour administration authorities are not empowered to reject a flawed statement of claims which alleges imaginary or unfounded infringements of labour standards; in this way, the conciliation procedure would be initiated and the strike could then be declared and the employer would have to pay the strike days.

365. With regard to the allegation relating to the legal provisions obliging the employer to pay wages in respect of strike days, the Committee notes the Government's statement and in particular that the employer's "responsibility" for the (lawful) strike is declared in the course of relief proceedings, during which it is incumbent upon the workers to substantiate grounds for imputability of responsibility, as laid down by legislation, namely:

366. In this respect, although the majority of aforementioned grounds for imputability of responsibility for the strike to the employer constitute violations of Conventions Nos. 87 and 98 and unlawful acts sanctioned in various forms in many countries for violation of the right to strike, failure to bargain in good faith or other unfair practices, the Committee considers that obliging the employer to pay wages in respect of strike days in the cases mentioned -- apart from potentially disrupting the balance in industrial relations and proving costly for the employer -- raises problems of conformity with the principles of freedom of association, to the extent that such payment should be neither required nor prohibited [see 307th Report, Case No. 1865, para. 223]; consequently, it should be a matter for resolution between the parties. In these circumstances, the Committee requests the Government to take measures to amend the legislation in the manner indicated.

367. Moreover, the Committee recalls that the complainant organizations of employers had pointed out that under the current regulations the labour administration authorities were not empowered to reject a flawed statement of claims which alleged imaginary or unfounded infringements of labour standards; in this way, the conciliation procedure would be initiated and the strike could then be declared and the employer would have to pay the strike days. Similarly, the Committee had requested the Government to provide information indicating whether there were procedures or competent bodies in the event of violations of the legislation or of collective agreements, in the event of disputes over their interpretation or in the event that the employer failed to cooperate in the collective bargaining process.

368. In this regard, the Committee notes the Government's statement that: (1) specifically for the collective bargaining period, there are no "competent bodies in the event of violations of the legislation or of collective agreements, in the event of disputes over their interpretation or in the event that the employer fails to cooperate in the collective bargaining process"; (2) nevertheless, Act No. 53, 1975, does empower the Ministry of Labour and Labour Development to conduct proceedings regarding the "legal interpretation or validity of clauses written into a collective agreement or other collective pact or accord"; (3) section 527 of the Labour Code authorizes any person, who so wishes, to request of the judicial authorities a declaration that a right or legal relationship does or does not exist or any other kind of declaration. However, the Committee notes that, as emerges from the Government's statement, the practical application of the aforementioned legal texts -- in particular in respect of disputes over rights -- has not yet taken place; and that the issues raised (possible suspension of the examination of the statement of claims, competent bodies, etc.) should be elucidated where necessary through administrative or judicial channels.

369. Consequently, the Committee recommends to the Government that it develop existing standards and procedures regarding conflicts of rights or interpretation as well as establish a clear, expeditious procedure, which would involve workers' and employers' organizations, for verifying non-compliance with legal provisions and clauses of collective agreements, making it possible to avoid collective disputes on the grounds under consideration. As regards the legal consequences of the employer's failure to reply to the statement of claims or his/her withdrawal from the conciliation procedure, the Committee considers that failure to reply to a statement of claims may be deemed an unfair practice contrary to the principle of good faith in collective bargaining, which may entail certain penalties as foreseen by law, without resulting, as is the case above, in a legal obligation upon the employer to pay strike days which is a matter to be left to the parties concerned. With regard to withdrawal from the conciliation procedure, the Committee observes that the legislation lays down mandatory conciliation and prevents the employer from withdrawing, irrespective of circumstances, at the risk of being penalized by payment of wages in respect of strike days; apart from being disproportionate, this runs counter to the principle of voluntary negotiation enshrined in Convention No. 98. In these circumstances, the Committee requests the Government to envisage amending the legislation in such a way that: (1) failure to reply to a statement of claims does not entail disproportionate penalties, and (2) withdrawal by one of the parties from the conciliation procedure does not give rise to disproportionate penalties.

370. With regard to the Government's request for technical assistance, the Committee recalls that the technical assistance of the Office is at its disposal with a view to ensuring that the legislation conforms more widely to the Conventions ratified regarding freedom of association and collective bargaining. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

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

Case No. 1965

Interim report

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

Allegations: Arrests and ill-treatment of trade unionists

372. The complaint is contained in a communication dated 19 May 1998 from the International Confederation of Free Trade Unions (ICFTU). The Government sent its observations in communications dated 29 May and 17 November 1998 and 25 May 1999.

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

A. The complainant's allegations

374. In its communication of 19 May 1998, the International Confederation of Free Trade Unions (ICFTU) alleges that 13 leaders or members of the Single National Union of Workers of the Construction Industry and Related Occupations (SUNTRACS) were arrested on 20 January 1998 during a peaceful demonstration (during a strike in the construction enterprise Aribesa in Los Lagos district, Colón Province) and detained for five days. The demonstration took place in the streets near the housing project which was being built by the company. The trade unionists in question were: Marcos Andrades of the union's national executive; Javier Méndez, union member; Julio E. Trejos, union representative; Juan C. Salas, union representative; Luis Avila, union representative; Alejandro De la Rosa, union member; Darío Melle, union member; Efraín Ballesteros, union representative; Martín Montaño, union member; Aníbal Alvarado, union member; Luis González, union representative; Tomas Mendoza, union representative; and Fernando Tlubet of the union's national executive. The ICFTU states that during their detention, the trade unionists endured inhuman conditions, with no water or sanitation, and that Mr. Luis González and others were assaulted and ill-treated by members of the national police. According to the complainant, the strike had been declared in protest at the company's failure to comply with certain conditions relating to the payment of social security contributions, provision of safety equipment, dismissals of workers, payment of the lighting clause, and payment of workers hired by subcontractors.

375. The ICFTU adds that on 21 January 1998, following the protest demonstrations of 20 January, the premises of SUNTRACS in the city of Colón were raided by agents of the national police, who arrested 12 union members. The order for the arrests was issued by the Mayor of the city of Colón. Among those arrested were the following: Carlos Agrazal, representative; Nicolás Romero, union representative; Darío Ulate, union member; Saúl Méndez, the union's national defence secretary; Luis F. Araúz; Valentín Sanjur; Sixto Ferreira; Pormilio Beitía; Alberto Gálvez, a human rights activist; Juan Rosero; Sebastián Hernández; and Guillermo Ortega. The detainees were all taken on the same night of 21 January to the Third Night Tribunal and sentenced to five days' non-commutable detention.

376. According to the secretary-general of SUNTRACS, the arrests were made on the grounds that the persons concerned had allegedly obstructed public roads, shown disrespect to authority and disturbed public order. On 27 January 1998, the union lodged a complaint with the National General Prosecutor alleging abuse of authority and action exceeding official powers by the Mayor of Colón, the night judge and the Cristóbal magistrate.

B. The Government's reply

377. In its communications of 14 May, 17 November and 29 May 1998, the Government states that the conflict in the present complaint originated in the dismissals of five workers from the company Aribesa on 16 January 1998. On 17, 19 and 20 January, the workers stopped operations in Los Lagos whereupon the company decided to dismiss all the workers involved. On 20 January 1998, SUNTRACS presented a list of complaints against the company Aribesa alleging violations of signed accords and the collective labour agreement. The company replied on 27 of the same month, within the period required by law, and refuted all the complaints set out in the list. Talks on the list of complaints began on 30 January and the union, as a bargaining tactic, demanded the reinstatement of all the dismissed workers and an investigation into the cases of the five workers dismissed on 16 January. The company stated that it was prepared to discuss the matter. On 2 February the company's negotiators were not present at the conciliation talks. On the following day, the company requested that the talks be suspended until the next day, when it would give its reply concerning the reinstatement of the dismissed workers, compliance with the accords signed with the union on 6 January 1998, the 6 per cent payment, and payment of tool hire charges. On 4 February, the company undertook to comply with the agreements signed on 6 January 1998 and that this would be done between 6 and 9 February. However, it refused outright to discuss the reinstatement of the dismissed workers. On the same day, the union and the company resolved to declare the conciliation process terminated, although the period of 15 days specified in paragraph 1 of section 443 of the Labour Code was not due to elapse until 11 February. The union had 20 working days from 4 February onwards within which it could declare a strike. The negotiations took place in an uneasy atmosphere of mutual recriminations and no agreement was reached on the list of complaints. In short, the talks did not lead to any agreement regarding reinstatement of the dismissed workers, since in the company's view these dismissals were legally justified. The union finally issued a strike declaration for 17 February 1998. The authorities endeavoured throughout these proceedings to bring the parties to an agreement.

378. The Government explains that in the early days of the dispute in mid-January 1998, during the protest demonstrations in the streets of Colón, members of SUNTRACS employed by the company committed acts of violence and destruction of private property and clashed with a group of workers led by the director, Marcos Allen. These workers had been hired by the company to replace the SUNTRACS workers. Such clashes were a violation of the procedures, established under the Labour Code by which workers can enforce their rights, violated the constitutional right of freedom of movement and resulted in damage to property. For these reasons the Mayor ordered the arrest of about 20 of the workers, who were subsequently released and enjoy full liberty.

379. The Government provides a copy of the judicial ruling which fined Mr. Javier Méndez and Mr. Marcos Andrade the sum of 225 balboas for damaging property and stated that a group of persons presumed to be members of the trade union organization SUNTRACS had tried to obstruct workers who were working normally at a site in Los Lagos. The Government also supplies copies of the labour court ruling against a number of SUNTRACS members (Luis F. Araúz, Valentín Sanjur, Juan Rosero, Darío Ulate, Guillermo Ortega, Pormilio Beitía, Sebastián Hernández, Nicolás Romero, Saúl Méndez and Sixto Ferreira) imposing fines and five days of arrest for causing a breach of the peace and obstructing highways, disturbing public order, peace and safety and showing gross disrespect to the Mayor of Colón and his family. Mr. Alberto Gálvez was ordered to pay a fine equivalent to 40 days' arrest for obstructing the police and for disrespect towards authority.

380. The Government indicates that the complainant itself states that the persons mentioned in the complaint were detained because they were accused of obstructing public highways, showing disrespect towards authority and disturbing public order. The Government considers that the alleged acts which have been established by the authorities (obstruction of highways, disturbances during illegal demonstrations, infringements of public order, peace and safety, damage to property, etc.) are not sanctioned by the ILO's freedom of association Conventions.

C. The Committee's conclusions

381. The Committee observes that in the present case the complainant alleges that 25 trade unionists from the union SUNTRACS were detained following a peaceful demonstration during a strike, that the union's premises were raided, and that some of the detainees were ill-treated and held in inhuman conditions.

382. The Committee notes that the Government denies that the demonstration was peaceful and states that the demonstrators destroyed or damaged property, committed acts of violence, tried to prevent other workers from working normally, prevented free movement by blocking roads and showed gross disrespect to the Mayor of Colón. In this regard, the Committee notes that, according to the Government, the acts of violence took place after the company Aribesa had dismissed five workers and decided subsequently -- citing as a reason the stoppage of construction work which occurred immediately afterwards -- to dismiss all the workers, and that the union regarded this action as a violation of the collective agreement and the accords signed with the company. The Committee emphasizes that, although a number of trade unionists were fined and/or sentenced to five days' detention by a court for the reasons indicated (and all of them have now been released), the company's decision to dismiss all the workers -- which according to the Government's statements has not yet been implemented -- seems excessive. Under these circumstances, the Committee appeals to the Government to mediate between the parties (the trade union SUNTRACS and the company Aribesa) with a view to resolving the problem of alleged failures to comply with legislation and the collective agreement cited by the union as well as the issue of the dismissals.

383. Lastly, noting that the Government has not replied to the allegations concerning the raid of SUNTRACS premises and the ill-treatment and inhuman conditions suffered by a number of SUNTRACS members, the Committee requests the Government to send its observations on the matter.

The Committee's recommendations

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

Case No. 2003

Definitive report

Complaint against the Government of Peru
presented by
the General Confederation of Workers of Peru (CGTP)

Allegations: Refusal to register a trade union executive board

385. The complaint is contained in a communication dated 10 December 1998 from the General Confederation of Workers of Peru (CGTP). This organization sent additional information in a communication dated 24 February 1999. The Government replied in a communication dated 27 May 1999.

386. 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

387. In its communications of 10 December 1998 and 24 February 1999, the General Confederation of Workers of Peru (CGTP) alleges that the Ministry of Labour, in accordance with its own Decision No. 003-98 of 21 August 1998 and Decision No. 323-98 of 17 September 1998 (copies of which are supplied by the complainant), refused to register the new National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP) for the period 1998-2000. According to the abovementioned administrative decisions, workers' organizations must, under Convention No. 87, respect the law of the land; an analysis of this file reveals that the list of National Executive Board members was made up of some workers who did not respect the requirements of the law, such as the requirement of being a company employee, since having been dismissed the employment relationship no longer existed and thus they were no longer active members of a trade union. The CGTP considers that this refusal violates the right of organizations to freely elect their representatives, as embodied in Convention No. 87.

B. The Government's reply

388. In its communication of 27 May 1999, the Government states that the inadmissibility of registering the National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru was due to objective circumstances and had nothing whatsoever to do with any wish on the part of the Ministry to interfere with the union or to carry out anti-union acts. In this respect, section 4 of the Collective Labour Relations Act states that: "The State, the employers and representatives of either shall refrain from any actions tending in any way to constrain, restrict or diminish the right of workers to form unions, and to refrain from interfering in any way in the establishment, administration or maintenance of trade union organizations established by workers." The Government adds that Decision No. 003-98 cited specific circumstances which made it impossible to register the National Executive Board; once those circumstances had been rectified, the Ministry of Labour proceeded with registration on 8 April 1999 (the Government has supplied supporting documents).

C. The Committee's conclusions

389. The Committee notes that in the present complaint, the complainant has alleged that the Ministry of Labour in August 1998 refused to register the National Executive Board of the National Federation of Mining, Metal, Iron and Steel Workers of Peru (FNTMMSP). The Committee takes note of the Government's statements to the effect that the National Executive Board was registered on 8 April 1999, once certain problems which had prevented registration had been resolved. As regards these circumstances, the Committee notes that the Ministry of Labour decisions refusing registration (sent in the annex accompanying the complaint) indicate that the motive for the refusal, contrary to the Collective Labour Relations Act, was the fact that some members of the Board were not company employees "by virtue of the fact that the employment relationship was dissolved at the moment of dismissal, which means that they are no longer active members of the union".

390. In this regard, the Committee wishes to draw attention to the principle according to which "The registration of the executive boards of trade union organizations should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 365] and that requirements of membership of an occupation or establishment as a condition of eligibility for union office are not consistent with the right of workers to freely elect their representatives [see Digest, op. cit., paras. 369-374], especially in the case of trade union federations. The Committee of Experts on the Application of Conventions and Recommendations has requested the Government to amend its legislation in this respect [see Report III (Part 1A), 1999, pages 270 ff.].

391. Under these circumstances, the Committee regrets the delay in the registration of the National Executive Board of the FNTMMSP and the fact that this organization was obliged to comply with requirements that its Board members be employed in a company in order to register its National Executive Board, and requests the Government to take steps to amend its legislation so as to ensure that employment within a company is not a condition of election to union office of a federation.

The Committee's recommendation

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

Case No. 2004

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

Complaint against the Government of Peru
presented by
the General Confederation of Workers of Peru (CGTP)

Allegation: Dismissal of a trade union official

393. The complaint in the present case is contained in a communication dated 20 January 1999 from the General Confederation of Workers of Peru (CGTP). This organization sent additional information in a communication dated 15 April 1999. The Government replied in communications of 26 April and 6 September 1999.

394. 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

395. In its communications of 20 January and 16 April 1999, the General Confederation of Workers of Peru (CGTP) alleges that the dismissal on 4 September 1998 of Mr. Benancio Aguilar Atahua, Economic and Financial Secretary of the CGTP's National Executive Board and employee of the Unión de Cervecerías Peruanas Backus y Johnston S.A., was anti-union in nature. The complainant also alleges that there has been an excessive delay in the legal proceedings initiated by Mr. Aguilar Atahua in October 1998 against his dismissal.

396. Furthermore, the complainant recalls that the company in question had attempted in July 1996 to include the trade union official Mr. Aguilar Atahua on a collective redundancy list but that on that occasion the administrative authority had ruled that he was protected by virtue of his trade union function and could not be included on the list. The complainant adds that the company appealed against this administrative ruling before the administrative disputes tribunal, which has yet to give a ruling.

B. The Government's reply

397. In its communications of 26 April and 6 September 1999, the Government states that according to the complainant, the dismissal of Mr. Benancio Aguilar Atahua was an arbitrary and discriminatory act carried out because of his activity as a union official after he had been elected Economic and Financial Secretary of the CGTP's National Executive Board on 3 December 1995 and had been included in a collective redundancy list issued by the company. The Government adds that the list in question, which was to terminate the official's employment, was approved by the labour authority through resolution No. 140-96. However, the Government indicates that according to this resolution, which was subsequently confirmed by resolution No. 034-96, Mr. Aguilar Atahua was not included in the collective redundancy list, which prompted the company to appeal to the Third Administrative Labour Disputes Tribunal to annul these resolutions. The Government notes the complainant's allegation that it has been denied justice and that it is presenting a complaint against Peru to the International Labour Organization.

398. As regards the allegation that no motives were given for the dismissal of the trade union official, the Government indicates that the complainant states that the situation is one of dismissal in connection with a collective lay-off and that, under the terms of labour standards, collective lay-offs have objective causes arising from unforeseen circumstances, force majeure, economic, technological, structural or other similar factors, or company closure. The Government adds that, given that the company Unión de Cervecerías Peruanas Backus y Johnston S.A. is in the process of merging with the Compañía Nacional de Cerveza S.A., the Sociedad Cervecera de Trujillo S.A. and the Cervecería del Norte S.A., it is reasonable to conclude that the mass dismissals have come about as a result of this merger process and, under the terms of section 63(b) of Supreme Decree No. 001-96-TR, are also applicable to workers normally protected by virtue of union office whenever there are specific reasons for including them in a "collective lay-off". At the same time, the Government indicates that, since the present case is still being examined by the 13th Labour Court of Lima and a ruling against the dismissal has not yet been handed down, existing remedies have not been exhausted and the complainant is in no position to present a complaint against Peru to the ILO.

C. The Committee's conclusions

399. The Committee notes that in the present case, the complainant alleges that the dismissal on 4 September 1998 of Mr. Benancio Aguilar Atahua, Economic and Financial Secretary of the CGTP's National Executive Board and employee of the Unión de Cervecerías Peruanas Backus y Johnston S.A., was of an anti-union nature, and also alleges that there has been an excessive delay in the legal proceedings initiated by Mr. Aguilar Atahua in October 1998 against his dismissal.

400. In the first place, the Committee notes that the Government's and complainant's versions of events relating to the dismissal of the union official in question are contradictory. According to the complainant, the dismissal was carried out without any motive being given and for anti-union reasons, whilst the Government indicates that the complainant itself stated that the dismissal was part of a collective lay-off, and that, given that the company is in the process of merging with other companies, "it is reasonable to conclude that the mass dismissals have come about as a result of this merger process". In this regard, the Committee notes that the complainant has at no time suggested that Mr. Aguilar Atahua was dismissed as a result of the collective lay-offs (which in fact occurred in July 1996) and indeed attached to its complaint a copy of the company's official notification to the union official in question which stated that he had been dismissed without any reason being given with effect from 5 September 1998. In this context, since it is an established fact that the dismissal took place without a motive being given, the Committee recalls that in its previous examination of similar allegations it had stated "In a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the Government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts" and "It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 706 and 707].

401. The Committee highlights the fact that the administrative authority in July 1996 ordered that the union official Mr. Aguilar Atahua, who had been on a list of persons to be laid off, should not be dismissed because he was protected by virtue of his union office and that he was nevertheless dismissed two years later in September 1998 while still protected. In these circumstances, while observing that a judicial process is under way on this matter, the Committee considers that Mr. Benancio Aguilar Atahua should be reinstated in his post without loss of pay and requests the Government to take all the necessary measures to this end, taking particular account of the slowness of the judicial process thus far (there has still been no ruling on the appeal lodged by the company in 1996 against the administrative resolution ordering that the union official in question should not be dismissed since he was protected by virtue of his union status). The Committee requests the Government to keep it informed of any measures which it may adopt in this regard.

402. As regards the anxieties of the complainant regarding the delay in the judicial proceedings initiated by Mr. Aguilar Atahua in October 1998 to have his dismissal annulled, the Committee recalls that:

[see Digest, op. cit., para. 749]. Under these circumstances, the Committee firmly trusts that the legal proceedings begun in October 1998 by the union official Mr. Aguilar Atahua in connection with his dismissal will be concluded in the near future. The Committee requests the Government to keep it informed of any court ruling which should be handed down swiftly in this regard.

403. Concerning the Government's statement that since a judicial procedure is under way the complainant was in no position to present a complaint to the ILO, the Committee recalls that, according to its procedures, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures. [See Procedures of the Committee, para. 33.]

The Committee's recommendations

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

Case No. 2012

Interim report

Complaint against the Government of the Russian Federation
presented by
the Trade Union of Workers of the All Russian
State Television and Radio Company

Allegations: Violations of the right to bargain collectively,
refusal to deduct union dues, withdrawal of facilities for
workers' representatives, denial of access to premises

405. The Trade Union of Workers of the All Russian State Television and Radio Company presented a complaint of violations of freedom of association against the Government of the Russian Federation in a communication dated 11 March 1999. A number of documents were annexed to the complaint. The Government forwarded its response to the allegations in a communication dated 26 April 1999.

406. The Russian Federation 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); it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

407. In its communication of 11 March 1999, the Trade Union of Workers of the All Russian State Television and Radio Company alleges that its collective bargaining rights have been violated since the All Russian State Television and Radio Company (VGTRK) has refused to bargain collectively with it and has failed to provide information relevant to collective bargaining. It is further alleged that the activities of the complainant have been interfered with by VGTRK withdrawing check-off facilities, withdrawing the use of premises, disconnecting telephone lines and denying workers' representatives access to the premises.

408. As background, the complainant states that it is the principal trade union representing workers of the All Russian State Television and Radio Company, which has 4,100 to 4,600 employees. The trade union was established in 1991 and its membership among VGTRK employees has varied since then from 2,200 to 2,600. The complainant was registered with the Department of Justice in Moscow on 17 February 1998.

409. The complainant states that, since 1993, it has on several occasions attempted to initiate collective bargaining with the management of VGTRK. The management representatives did not initially refuse outright to engage in collective bargaining; however, they evaded negotiations on the basis of various specious excuses. The complainant states that the attitude demonstrated by the management had been one of reasonable tolerance until September 1997. In September 1997, the management removed the question of collective bargaining from its agenda; however, the complainant continued to approach the management on this subject repeatedly from the end of 1997 throughout 1998. The complainant protested to the Public Prosecutor concerning the refusal to bargain. In a letter dated 17 April 1998, annexed to the complaint, the Public Prosecutor stated that he had examined the representation of the complainant concerning infringements of the legislation on collective agreements and found that infringements had taken place. He stated that:

In a letter of 5 June 1998, the Federal Labour Inspectorate also stated that VGTRK had infringed the law by refusing to take part in collective bargaining.

410. In a subsequent letter, dated 24 April 1998, the Public Prosecutor stated that there had been violations of the Law on Trade Unions, their Rights and Safeguards for their Activities. According to the Public Prosecutor:

The Public Prosecutor went on to find that, among other violations, VGTRK had not forwarded information on social and employment matters that had legitimately been requested by the trade union. However, VGTRK informed the complainant by letter dated 15 June 1998 that the enterprise would be undergoing restructuring, and that the question of the conclusion of a collective agreement could be resolved "only once the restructuring of VGTRK has been concluded and the new constituent documents approved". The complainant again appealed to VGTRK to negotiate (letter dated 23 July 1998). In response, the President of the company referred to an action filed by the trade union before the Moscow Court of Arbitration stating that it was "illegal" and that for this reason he considered negotiations with the union "inexpedient" (letter dated 9 December 1998).

411. The Moscow Municipal Court in its decision of 12 December 1998, also annexed to the complaint, dismissed the complaint of refusal to bargain since the Chairperson of the union did not have authorization from the trade union committee to sign the statement of claim (due to an absence of quorum). The trade union then made a number of other requests to VGTRK to take part in negotiations. In a letter dated 5 February 1999 addressed to the Chairperson of the complainant, the First Deputy President of VGTRK stated that:

412. The complainant submits that the management's attitude changed dramatically on 9 January 1998 when the complainant took action to protect the workers' rights against mass lay-offs. Since the end of January 1998, the payment of union dues has been suspended, attempts have been made to discredit the trade union, members of the trade union committee have been persecuted and indirect pressure has been put on workers to withdraw from the union. According to the complainant, in March 1998, the management, in an attempt to contest the complainant's legitimacy, lodged a complaint against it with the Public Prosecutor's Office. However, the Public Prosecutor rendered a decision in which it found that the actions of the management had been unlawful, and confirmed the legitimacy of the complainant.

413. With respect to the withdrawal of check-off facilities, a number of details are set out in the decision of the Public Prosecutor, dated 24 April 1998. Due to an order dated 20 January 1998 of the President of VGTRK, deductions of membership dues from the wages of the complainant's members were suspended. The complainant protested. By order of the President of VGTRK dated 15 April 1998, the deduction of dues accrued since 1 January 1998 was authorized, subject to the company receiving written authorization from the individual members. Each member was asked to confirm his or her consent to the deduction of trade union dues and also to the deduction of the arrears in dues resulting from the temporary suspension. By letter of October 1998, annexed to the complaint, the President of VGTRK informed the complainant that, due to financial difficulties, trade union membership dues were not transferred to the complainant's account for July and August of 1998, but that as soon as there was money available the dues would be transferred. By order of 9 February 1999, the President of VGTRK instructed the accounting office to stop the deduction of trade union dues and to return the dues deducted between June and December 1998 to the workers. Correspondence between a member of the complainant organization and VGTRK is also included with the complaint; the member specifically requested that the trade union dues deducted from his wages in 1998 and 1999 be transferred to the complainant's account and that the dues continue to be deducted from his wages and transferred to the complainant. In response, the head accountant stated in a communication of 4 March 1999 that the accounting office had been ordered to stop deducting dues and to return the deductions made from June 1998 to January 1999 and "for this reason it is not possible to transfer your membership dues or to deduct them in the future".

414. The complainant states that the most recent act committed against it was its expulsion at the end of February 1999 from the premises which it had been allocated. The premises were sealed and the telephone lines were disconnected. The Chairperson of the trade union committee was denied access to the workplace. The activities of the complainant were, therefore, completely hindered at a time when VGTRK was undergoing restructuring and workers were facing the threat of lay-offs. The document issued by the President of VGTRK dated 9 February 1999, a copy of which is annexed to the complaint, orders the eviction of the complainant's trade union committee and the removal of all material put at its disposal, as well as cutting off the telephone and facsimile access.

415. The complainant concludes by alleging violations of the following trade union rights:

B. The Government's reply

416. In its communication of 26 April 1999, the Government submits that it has not been able to confirm the facts alleged by the complainant. It states that in the course of an investigation conducted by the labour inspection division in April 1999, it was established that Ms. I.L. Zuyeva, Chairperson of the complainant's trade union committee, had on 17 September 1997 and 4 February 1998 addressed to the President of VGTRK written proposals to initiate collective bargaining with the aim of concluding a collective agreement. In response, in communications of 15 October 1997 and 10 February 1998, the President of VGTRK requested, in accordance with sections 2(3), 4 and 7(1) of the Law on Collective Agreements and Accords, that the following documents be submitted to the administration of VGTRK before collective bargaining could begin:

The Government states that, despite this request, the documents submitted by the trade union committee under cover of a communication dated 21 January 1998, did not provide evidence of authority being given to the representatives to conduct collective bargaining.

417. Pursuant to sections 25 and 28 of the Law on Collective Agreements and Accords, liability for evading negotiations to conclude a collective agreement is to be established by the court. On 27 April 1998, Ms. Zuyeva, on the basis of these provisions, filed a statement of claim with the Savelovsky Intermunicipal People's Court of Moscow to have the Court compel VGTRK to negotiate with a view to concluding a collective agreement. Having considered the matter, the Court dismissed the case on the grounds that there had been no decision of the trade union committee authorizing its Chairperson to sign the statement of claim and submit it to the Court. Another application signed by Ms. Zuyeva, submitted to the same Court and seeking the same relief, was heard by the Court on 15 September 1998 and dismissed on the same grounds. An appeal was then lodged before the Moscow Municipal Court, which was dismissed on 12 December 1998.

418. The Government denies the complainant's allegations that the management of VGTRK instructed its accounting service to stop deducting membership dues from the wages of trade union members and has impeded trade union activities by withdrawing the use of premises and disconnecting telephone lines. It states that, according to Order No. 223 of 15 April 1998, issued by the management of VGTRK, membership dues are to be deducted from the wages of trade union members provided there is a written request from the member. The Government points also to section 28(1) and (2) of the Law on Trade Unions, their Rights and Safeguards for their Activities, according to which "employers are to provide trade unions functioning in the enterprise, free of charge, with the facilities, premises, transport and means of communication needed for their activities, in accordance with the relevant collective agreement". The employer may also transfer to the trade unions, free of charge, for their use any buildings, facilities or other assets, owned or leased by the employer. Since a collective agreement had not been concluded between the complainant and VGTRK, the Government asserts that the enterprise had no obligations under these provisions of the law, and this was confirmed by the Arbitration Court of Moscow which rejected the complainant's claim.

C. The Committee's conclusions

419. The Committee notes that this case concerns alleged actions of the All Russian State Television and Radio Company (VGTRK) against the Trade Union of Workers of the All Russian State Television and Radio Company. In particular, the complainant alleges that VGTRK has refused to recognize it for the purposes of collective bargaining and failed to provide information directly related to collective bargaining. The complainant further alleges that VGTRK has interfered with its activities by withdrawing check-off facilities, withdrawing the use of premises, disconnecting telephone lines and denying workers' representatives access to the premises.

Collective bargaining

420. Regarding the allegation that the complainant's collective bargaining rights have been violated, the Committee notes that the Government does not dispute that the complainant is the most representative trade union at VGTRK and has on numerous occasions unsuccessfully attempted to initiate collective bargaining with VGTRK. The Committee also notes that, according to the Government, the refusal on the part of VGTRK to negotiate collectively with the complainant resulted from the complainant not submitting documentation to VGTRK which it had requested pursuant to the Law on Collective Agreements and Accords, confirming that its representatives were duly authorized to conduct collective bargaining.

421. The Committee, however, notes the finding of the Public Prosecutor, set out in a letter dated 17 April 1998, that VGTRK had infringed the legislation on collective agreements since the complainant had attempted to initiate collective bargaining on six occasions and "through the management's fault, negotiations still have not begun". The Federal Labour Inspectorate also found that VGTRK had infringed the law by refusing to take part in collective bargaining. In addition, the Public Prosecutor stated that there had been violations of the Law on Trade Unions, their Rights and Safeguards for their Activities since the management was interfering in the activities of the trade union by repeatedly demanding that the trade union committee produce various documents, including its constituent documents, in order to check up on the legality of the trade union's activities.

422. The Committee also notes that the Moscow Municipal Court in its decision of 12 December 1998, referred to by the Government, dismissed the complaint of refusal to bargain solely on procedural grounds since the Chairperson of the union did not have authorization from the trade union committee to sign the statement of claim (due to an absence of quorum). No decision on the substance of the matter has been rendered. The trade union then made a number of other requests to VGTRK to take part in negotiations, which were refused.

423. The Committee considers that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association; it also points out the importance which it attaches to the right of representative organizations to negotiate [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 782 and 784]. The Committee notes with concern that, despite requests from the complainant since 1993, collective bargaining has not taken place in VGTRK due to the absence of a positive response from the management. The company justifies its delays and refusals on the fact that a restructuring will soon be taking place and then due to the complaints filed by the complainant before various administrative and judicial bodies. In the view of the Committee, neither can be considered a legitimate reason for refusing to bargain collectively with the most representative trade union. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith: 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 [see Digest, op. cit, paras. 814 and 815]. In the view of the Committee, VGTRK was not acting in good faith in refusing to bargain collectively with the most representative trade union, thus violating the complainant's trade union rights.

424. On the question of the denial of access to information on matters having a direct bearing on collective bargaining, the Committee notes that legislation provides that trade unions are entitled to receive information on social and employment matters (Law on Trade Unions, their Rights and Safeguards for their Activities, section 17). The Committee recalls that "certain rules and practices can facilitate negotiations and help to promote collective bargaining and various arrangements may facilitate the parties' access to certain information concerning, for example, the economic position of the bargaining unit, wages and working conditions in closely related units, or the general economic situation ..." [see Digest, op. cit, para. 859]. The Committee, noting that the national legislation provides avenues for facilitating collective bargaining, including access to information, requests the Government to ensure that the legislation is applied in practice and to take measures to ensure that VGTRK negotiates in good faith with the complainant. It also requests the Government to provide information relevant to collective bargaining.

Interference with trade union activities

425. With respect to the allegation that VGTRK has interfered with the activities of the complainant, the Committee notes that a number of different types of interference are set out: withdrawing check-off facilities; withdrawing the use of premises and telephone services; and denying workers' representatives access to the premises. On the issue of the withdrawal of the use of premises and telephone services, the Committee notes the document issued by the President of VGTRK dated 9 February 1999 ordering the eviction of the complainant's trade union committee and the removal of all material put at its disposal, as well as cutting off the telephone and facsimile access. In this context, the Committee notes the statement of the Government to the effect that, in the absence of a collective agreement, the VGTRK was not obliged to provide facilities to the trade union. It indeed appears that pursuant to section 28(1) of the Law on Trade Unions, their Rights and Safeguards for their Activities, the facilities, premises and means of communication that the unions require are only provided by the enterprise "in accordance with the relevant collective agreement". It seems, therefore, that by evading collective bargaining, the employer can deny access to facilities for the proper functioning of the trade union.

426. The Committee draws attention to Article 2(1) of the Workers' Representatives Convention, 1971 (No. 135), which states that "such facilities in the undertaking shall be afforded to workers' representatives as may be appropriate to enable them to carry out their functions promptly and efficiently". The Committee notes, in particular, that workers' representatives should be granted access to all workplaces in the undertaking, where such access is necessary to enable them to carry out their representation function [see Workers' Representatives Recommendation, 1971 (No. 143), paragraph 12; see also Digest, op. cit., para. 954]. Noting the deficiency in the legislation concerning this point, the Committee requests the Government to make the necessary modifications to the legislation, keeping in mind the prinicples in Convention No. 135 and Recommendation No. 143, and to keep it informed of the measures taken in this respect.

427. In the present case, since the absence of a collective agreement is a result of the hostile attitude of the VGTRK to the commencement of negotiations, the Committee considers that this absence of an agreement is not a sufficient justification to deny facilities to the trade union. The Committee, therefore, requests the Government to ensure that the facilities necessary for its proper functioning are granted to the complainant trade union.

428. With respect to the withdrawal of check-off facilities, the Committee notes that, due to an order dated 20 January 1998 of the President of VGTRK, deductions of membership dues from the wages of the complainant's members were suspended. The complainant protested. By order of the President of VGTRK dated 15 April 1998, the deduction of dues accrued since 1 January 1998 was authorized, subject to the company receiving written authorization from the individual members. The President of VGTRK in October 1998 informed the complainant that, due to financial difficulties, trade union membership dues were not transferred to the complainant's account for July and August of 1998, but that as soon as there was money available the dues would be transferred. However, on 9 February 1999, the President of VGTRK instructed the accounting office to stop the deduction of trade union dues and to return the dues deducted between June and December 1998 to the workers (it appears that these dues had been deducted from the members' wages but not yet transferred to the complainant's account). The Committee notes that one member of the complainant organization specifically requested that the trade union dues deducted from his wages in 1998 and 1999 be transferred to the complainant's account and that the dues continue to be deducted from his wages and transferred to the complainant, but was informed that the accounting office had been ordered to stop deducting dues and to return the deductions made from June 1998 to January 1999 and, therefore, could not transfer the membership dues or deduct them in future.

429. On this matter, the Committee notes that the Government's response acknowledges only the order issued by the management of VGTRK of 15 April 1998 authorizing deductions of union dues upon the written request of the members. The Committee notes with deep regret that VGTRK on various occasions deducted dues without remitting them to the complainant or suspended the deductions. The Committee recalls that the withdrawal of check-off facilities, which could lead to difficulties for trade unions, is not conducive to the development of harmonious industrial relations and therefore should be avoided [see Digest, op. cit, para. 435]. The Committee requests the Government to take measures to ensure that VGTRK allows trade union dues to be deducted and transferred to the complainant when expressly requested by members. The Committee also requests the Government to provide information concerning the deductions that have been withheld or suspended.

The Committee's recommendations

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

Case No. 1994

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

Complaint against the Government of Senegal
presented by
the National Union of Autonomous Trade Unions of Senegal (UNSAS)

Allegations: Arrests, detentions and dismissals of trade
unionists and union leaders, violations of the right of
collective bargaining, prohibition of public
demonstrations, attacks on trade union premises

431. In a communication of 2 October 1998 the National Union of Autonomous Trade Unions of Senegal (UNSAS) lodged a complaint of violation of trade union rights against the Government of Senegal. The Government sent its observations in a communication dated 29 January 1999. The complainant supplied additional information in a communication dated 8 March 1999.

432. Senegal 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

433. The National Union of Autonomous Trade Unions of Senegal (UNSAS) alleges violations of trade union rights and refers specifically to the case of the Single Trade Union of Electricity Workers (SUTELEC). This union operates within the National Electricity Company of Senegal (SENELEC), a state-owned company which has a monopoly in the generation, delivery and distribution of electrical power in Senegal.

434. The complainant alleges that the General Secretary of SUTELEC, Mr. Mademba Sock, who is also General Secretary of UNSAS, was arrested on 20 July 1998 together with 26 other trade unionists, and that in all 38 trade unionists were dismissed by the management of SENELEC. The complainant considers that these actions were the doing of the Managing Director of SENELEC, acting in connivance with the Government and the National Confederation of Workers of Senegal. The actions allegedly form part of a pattern of events, described below, during the course of which the Government and the SENELEC management violated the most fundamental principles of freedom of association.

435. The complainant alleges, first, that the Government obstructed free collective bargaining within SENELEC. Specifically, UNSAS claims that the Government failed to honour an agreement concluded on 2 June 1997 with SUTELEC as part of the reform programme in the electricity sector the purpose of which was to privatize the generation, distribution and sale of electricity. The aim of the agreement was to provide a way of solving the problem of investment, maintaining the public service and safeguarding workers' interests. In addition, it was expressly stipulated that any subsequent changes to the agreement would have to be discussed by the parties and included in a signed amendment.

436. According to the complainant, the Government deliberately flouted this agreement by deciding unilaterally and without any prior consultation that the transformation of SENELEC would be effected only on an interim basis and that it would be carried out through the immediate sale of shares to private investors, rather than by increasing the capital before flotation.

437. Similarly, the complainant considers that the Managing Director and Board of Directors of SENELEC are obstructing free collective bargaining. The complainant explains that on 16 February 1998, SUTELEC submitted a request to the company's Board of Directors for talks on matters including wage increases, cancellation of debt for employees who were not signed up for voluntary severance, indexation of bonuses and merit promotions. The complainant alleges that, following three meetings with senior management on 17 and 20 March and 3 April 1998, the SENELEC management resorted to blatant delaying tactics. The complainant also alleges that the Managing Director for over two months failed to follow up the proposed amendment concerning talks on merit promotions which had been drafted in the usual way by representatives of the personnel department and two members of SUTELEC. The complainant also claims that, although the matter was drawn to the attention of SENELEC's Board of Directors as early as February 1998, that body has still not taken any decision on wage increases, qualifications and staff debts, or expressed any view on the lack of good faith on the part of the Managing Director during talks on management restructuring.

438. It was this attitude of indifference on the part of the authorities, together with the persistent attempts by SENELEC management to persuade staff to accept voluntary severance, despite the negative impact of this policy on the general running of the company, which prompted SENELEC during its general assembly on 9 July 1998 to ask workers affected by multiple job holding and overtime work to keep to their original posts and to work only normal working hours. The complainant stresses that there is no link between these measures and the general power cuts that took place on 15 July, and recalls that similar power cuts had occurred on 29 June. The complainant stresses that the power cuts in question were not the result of any deliberate acts of sabotage.

439. On 20 July 1998, following these events and a complaint from the Managing Director of SENELEC alleging sabotage of electrical power installations, the police arrested Mr. Mademba Sock, the General Secretary of SUTELEC, together with 26 of his colleagues, without a warrant, just as the third of the power cuts occurred. After being held in custody for four days, the detainees were brought before a magistrate and charged with, among other things, "interfering with the free operation of industry or labour through a coordinated plan to damage public installations" and "acts likely to jeopardize public safety". The detainees were remanded in custody on 23 July 1998 on the orders of the investigating magistrate.

440. On 8 December 1998 the court ordered the release of all the persons charged with "causing deliberate damage to public electrical installations belonging to SENELEC" and "complicity in acts aimed at causing deliberate damage to public electrical installations belonging to SENELEC". However, Mr. Mademba Sock and Mr. Samba Yoro Dieye were found guilty of acts likely to jeopardize public safety under the terms of section 80 of the Penal Code and sentenced to six months' imprisonment. The court considered that the actions taken following the July general assembly (referred to above) had the predictable consequence of "reducing output and disrupting the generation and distribution of electricity owing to the age of the equipment" and that "serious threats of disturbances were made against an essential service". In finding Mr. Sock and Mr. Dieye guilty, the court made it clear that the Penal Code applies to the possible consequences of an action, rather than just the actual result of it. Mr. Sock and Mr. Dieye served their sentences and were released on 23 January 1999.

441. In addition to these arrests, the complainant adds that the Managing Director of SENELEC initiated dismissal proceedings against 38 members of SUTELEC including the two persons who had been arrested. On 24 July 1998 the Managing Director was given permission by the regional labour inspectorate in Dakar to dismiss 13 staff representatives on the grounds that they had incited colleagues to work-to-rule, encouraged insubordination among staff, abandoned their posts and carried out actions likely to disrupt the service. The Minister of Labour and Employment confirmed this decision on 16 September 1998.

442. The complainant also alleges that there have been systematic attempts to interfere with and suppress its peaceful meetings and demonstrations. UNSAS states that all its requests for permission to hold peaceful marches or public meetings have been systematically turned down. While no reasons were given at first, more recent decisions have been based on public order considerations. Lastly, the complainant maintains that its attempts to hold demonstrations have all been broken up by force.

443. Finally, the complainant alleges that its premises have been broken into. On 19 August 1998, law enforcement officials threw tear-gas grenades into the union's premises with the aim of breaking up a meeting.

B. The Government's reply

444. The Government states, first, that there is no dispute between it and UNSAS or SUTELEC and that the dispute is rather between the management of SENELEC and SUTELEC and concerns matters such as pay rises, debt cancellation, indexation of bonuses, merit promotions and the suspension of incentives for voluntary severance. The Government states that apart from sectoral claims, most of which have been resolved by the power company and the union, the dispute has been caused by planned reforms in the power sector. The Government explains that, given the disappearance of traditional sources of finance and the growing need for investment, the State has undertaken a wide-ranging programme of reforms. As part of these reforms it has initiated a broad dialogue with the social partners which led to the adoption by the National Assembly of Act No. 98-06 on 28 January 1998 authorizing the transformation of SENELEC into a joint-stock company in which the State would own the majority of the shares. The Government points out that, before the Act in question was adopted, consultations with SUTELEC had led to the signature of the agreement of 2 June 1997 concerning SENELEC's continued role as principal operator responsible for the delivery, distribution and sale of electricity; the introduction of independent electricity producers; and the transformation of SENELEC into a joint-stock company in which the State would own a 51 per cent majority of the shares, including 10 per cent which would be offered to employees. The Government claims that only seven months after the enactment of Act No. 98-06, SUTELEC declared a work-to-rule with the clear aim of preventing the implementation of the agreement.

445. The Government maintains that SENELEC was swamped by demands which culminated in the order given by SUTELEC to its members during the general assembly of 9 July 1998 to refuse to do legally authorized overtime or to do more than one job. This state of affairs continued until 15 July 1998, when a power cut affected almost the entire country. According to the Government, investigations by SENELEC's own technical departments found evidence of attempts to damage production equipment, and it was following these incidents that the SENELEC management lodged a complaint; an investigation by the judicial authorities led to the arrest of the General Secretary of SUTELEC and 26 of his colleagues. The SENELEC management then took steps to cancel the employment contracts of the 38 trade union officials involved. The Government maintains that the arrests and detentions of the SUTELEC officials are not connected with their trade union activities and that individuals were not dismissed because they had exercised their trade union rights.

446. The Government examines in detail each of the allegations contained in the complaint. With regard to the allegations concerning failure to honour the agreement of 2 June 1997, the Government explains that the only changes brought about by the adoption of Act No. 98-06 concerned the proportion of shares reserved for employees, which is fixed at exactly 10 per cent, and a deadline for exercising the purchase option which was open to employees until 31 December 1998. If SENELEC decides, before shares are floated, to increase the company's capital, only the State, which is the sole shareholder, can fund the increase. Furthermore, the Government states that before Act No. 98-06 was adopted, the Minister of Energy had a meeting with SUTELEC officials to inform them of the new situation.

447. As regards the alleged violations of free collective bargaining supposedly perpetrated by the Managing Director and Board of Directors of SENELEC, the Government emphasizes that the complainant itself recognizes that three meetings were held with SENELEC management (on 17 and 20 March and 3 April 1998); these resulted in significant pay rises in the order of 15 per cent for the lowest paid workers and of 5 per cent for those on higher pay scales. Furthermore, an agreement of 17 March 1998 provides for a further increase of 5 per cent for all employees with effect from December 1998.

448. As regards the allegations concerning the arbitrary arrest and detention of 27 SUTELEC members including five of the most senior officials and 12 staff representatives, the Government states that at no time were the judicial authorities influenced. The Government, like the complainant, adds that the judicial authorities handed down a ruling on 8 December 1998 that was broadly favourable to SUTELEC, thus proving their total independence. On that occasion the court simply released the detainees and acquitted them of all the charges brought against them. The court only found Mr. Mademba Sock and Mr. Samba Yoro Dieye guilty of acts likely to jeopardize public safety and sentenced them both to six months' imprisonment. The Government provides a copy of the sentence handed down.

449. As regards the offer of voluntary severance made to staff, the Government considers that the negative reaction to this on the part of SUTELEC is not binding on the SENELEC management, which is legally obliged to define company policy and under law enjoys a certain freedom to take management decisions. The Government nevertheless states that the policy in question is aimed at employees who are in poor health or close to retirement age, non-managerial staff aged 50 years or above, managerial staff aged over 55 years, employees without at least a completed secondary education and employees in posts which are to be phased out. The Government regrets that SUTELEC criticizes the proposals without suggesting possible improvements.

450. As regards allegations concerning dismissals of trade unionists including 19 staff representatives and ten union officials, the Government states that these were authorized by the Dakar regional labour inspectorate following a request from SENELEC which was made on the following grounds: incitement of employees to work-to-rule, incitement of staff to insubordination, incitement of workers to reduce output, abandoning of posts, acts likely to cause disruptions in service, and undermining of confidence. The Government notes that by inciting workers to work-to-rule without warning, SUTELEC officials violated sections L.273 and L.274 of the Labour Code and put themselves at fault in such a way as to justify their dismissal under section L.275 of the Code. In addition, the Government recalls that under the terms of section 19 of the internal regulations of SENELEC, an employee can be dismissed in the following cases: incitation of workers to insubordination; deliberately cutting output; insubordination; and refusal to carry out tasks required in the course of the employee's normal duties. The Government considers that the ruling given by the Dakar regional labour inspectorate and confirmed by the Minister of Labour is based on law and on the company's internal regulations which complement the individual employment contracts of the employees concerned.

451. As regards the allegations concerning the systematic prohibition and suppression of non-violent union meetings and demonstrations, the Government explains that the legislators have granted wide discretionary powers to the administrative authorities, who can prohibit public demonstrations if they believe these might lead to disorder. The Government states that all the banning orders signed by the administrative authorities are based on relevant legislation. Furthermore, the Government notes that UNSAS did not lodge any appeal before the Council of State.

452. As regards the allegations concerning the attacks carried out on UNSAS premises, the Government recalls that the principle of the inviolability of trade union premises is embodied in section L.27 of the Labour Code. However, this principle is applicable only if the trade union organizations concerned comply with legislation concerning public meetings or demonstrations in public places. The Government regrets that the UNSAS activists use the union premises as a refuge or retreat when unauthorized demonstrations are broken up.

453. Lastly, the Government recalls that in October 1992 almost all regions of Senegal had experienced blackouts under circumstances identical to those of 15 July 1998. At that time Mr. Mademba Sock himself had attributed these actions to his own union but did not suffer any sanctions.

C. The Committee's conclusions

454. The Committee notes that the present case concerns numerous allegations of violations of trade union rights, including violations of free collective bargaining, arrests, detentions and dismissals of trade unionists and union officials, as well as prohibitions of public demonstrations and attacks against trade union premises.

455. With regard to the allegations of violations of free collective bargaining, the Committee notes that the complainant alleges that the management of SENELEC adopted delaying tactics during talks on matters such as pay increases, cancellation of debt for employees not signed up for voluntary severance, indexation of bonuses and merit promotions, and that the Government did not honour an agreement signed on 2 June 1997 by the Government and SUTELEC. The Committee notes that the Government and the complainant refer to three meetings of the management of SENELEC and SUTELEC; the Government adds that these meetings resulted in an agreement between the parties on a number of areas, a fact which is not denied by the complainant. In the light of the information available to it, in particular concerning the meetings between the trade union and the company and the conclusion of a subsequent agreement, the Committee is unable to conclude that the SENELEC management violated the principle of free collective bargaining or failed to negotiate in good faith with SUTELEC. However, the Committee emphasizes the importance which it attaches to the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement, which means that any unjustified delay in the holding of negotiations should be avoided. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 816.] The Committee therefore requests the Government to keep it informed of the progress in talks between the trade union SUTELEC and representatives of the power company SENELEC.

456. As regards the agreement of 2 June 1997, the Committee notes that it states expressly that SENELEC is to be maintained as the principal operator responsible for the delivery, distribution and sale of energy in Senegal (article 1). In accordance with the agreement, the parties agree to transform SENELEC into a joint-stock company in which the State will own at least 51 per cent of the company's shares (article 3b). In addition, the State retains the option of offering some of its shares to SENELEC employees, at the request of SUTELEC (article 3c). Lastly, it is expressly stated that both parties must honour the agreement, any alteration to which must be discussed in advance and set out in a signed amendment (article 7). However, the Committee notes that under the terms of section 2 of Act No. 98-06 of 28 January 1998 the State shall own not more than 51 per cent of the company's share capital including the shares to be offered to workers (10 per cent), leaving not more than 41 per cent of the shares in state ownership, the majority of SENELEC shares then being owned by private shareholders. Under the circumstances, the Committee is bound to regret the clear contradictions between Act No. 98-06 and the agreement of 2 June 1997 and requests the Government to comply in future with agreements that have been duly negotiated and signed.

457. As regards the allegations concerning the arbitrary arrest and detentions of 27 members of SUTELEC including the General Secretary of UNSAS and SUTELEC, union officials and staff representatives, the Committee recalls, firstly, that these are extremely serious allegations and 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, op. cit., para. 71.] The Committee notes that the persons in question were charged with "causing deliberate damage to public electrical installations", "violence and criminal damage", "interference with the free exercise of labour", "perpetrating acts likely to jeopardize public safety", and "complicity" in causing power cuts experienced by Senegal in the summer of 1998. The court which examined the case nevertheless concluded that the evidence submitted to it in support of these charges was insufficient and released all the accused, with the exception of Mr. Mademba Sock and Mr. Samba Yoro Dieye, who were found guilty on only one count, namely that of committing acts likely to jeopardize public safety under section 80 of the Penal Code. They were sentenced to six months' imprisonment and duly served the sentence. The Committee notes that the court bases its ruling on the fact that the predictable consequence of refusing to do more than one job and boycotting overtime -- measures which were agreed at the SUTELEC general assembly on 9 July 1998 -- would be "to reduce output and disrupt the generation and distribution of electricity owing to the age of the equipment" and that "serious threats of disturbances were made against an essential service". The court adds that section 80 of the Penal Code is aimed at just such situations as these since it "applies not to the actual result but to the possible consequences of actions" and that it can cover a wide range of possible consequences not only of an action but also of a written or spoken statement or even suggestions made in public. The court concluded that the actions of Mr. Sock and Mr. Dieye met these criteria and found them guilty.

458. Under the circumstances, the Committee notes that the power company SENELEC provides an essential service, that is to say, a service whose interruption may cause a clear and immediate threat to the life, safety and health of all or part of the population. In such cases, the Committee recalls that it has already acknowledged that the right to strike may be restricted in such essential services provided that adequate protection is given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of the "appropriate guarantees", the Committee has indicated that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented. [See Digest , op. cit., paras. 546 and 547.] In the present case, the Committee considers that the lack of any compensatory measures together with the extremely wide scope of section 80 of the Penal Code, which applies not merely to the actual public safety consequences but to the possible consequences of certain acts, have helped to create a climate of tension which has led to the arrests and detentions referred to in the complaint; in order to prevent such regrettable situations arising again in future, the Committee reminds the Government that trade union activities should not serve as a pretext to the public authorities to arbitrarily arrest or detain trade unionists. The Committee requests the Government to take the necessary measures to ensure that SENELEC workers enjoy appropriate guarantees to compensate them for the restrictions imposed on their freedom of action; this may take the form of adequate, impartial and speedy conciliation and arbitration procedures. The Committee requests the Government to keep it informed in this regard.

459. As regards the dismissals of SUTELEC members who were arrested and subsequently released, the Government maintains that the individual contracts of employment of these 25 workers and of 11 other trade unionists who were not arrested were cancelled by the Dakar regional labour inspectorate at the request of SENELEC as a result of problems caused by the general power cut of 15 July 1998. Nevertheless, noting that the criminal court acquitted the 25 employees who had been arrested, the Committee deplores the dismissal of the SUTELEC members who were acquitted as well as the dismissal of the workers who had not been arrested. In this context the Committee requests the Government to reassess the situation in the light of the ruling handed down in December 1998 and to take the necessary measures to ensure that all the SUTELEC trade unionists and officials who were dismissed following the events of July 1998 are offered reinstatement in their posts and without any loss of pay. The Committee requests the Government to keep it informed in this regard. Finally, the Committee notes that the dismissals of the staff representatives were authorized by the regional labour inspectorate and confirmed by the Minister of Labour, bodies which, in this case, appear to be partial, it being understood that before the adoption of Act No. 98-06 which had the effect of transforming SENELEC into a joint-stock company, SENELEC was a state-owned company. The Committee further requests the Government to ensure that bodies responsible for protecting trade union officials against anti-union dismissals act impartially and independently.

460. As regards the allegations concerning the systematic prohibition and suppression of peaceful union meetings and demonstrations, the Committee notes that according to the Government the administrative authorities have wide discretionary powers to ban public demonstrations. The Committee recalls that trade union rights include the fundamental right to hold public demonstrations. Although the prohibition of demonstrations on the public highway in the busiest parts of a city, when it is feared that disturbances might occur, does not constitute an infringement of trade union rights, the authorities should strive to reach agreement with the organizers of the demonstration to enable it to be held in some other place where there would be no fear of disturbances. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace. [See Digest, op. cit., paras. 136 and 137.] In the present case, the Committee deplores any violent suppression of trade union demonstrations which might have taken place; it urges the Government to give the necessary instructions to ensure that such meetings can take place without interference by the public authorities. In addition, the Committee requests the Government to come to an agreement with the complainant to ensure that the latter can organize peaceful public meetings, this being an important aspect of trade union rights.

461. Lastly, with regard to the allegations concerning the attacks carried out against the UNSAS headquarters, the Committee notes the Government's statements to the effect that UNSAS activists took refuge in their premises following the break-up by the police of a public demonstration. The Committee refers to the previous paragraphs concerning the use of force to break up public demonstrations. Furthermore, as regards the attacks on trade union premises and the threats made against trade unionists, the Committee recalls that activities of this kind create among trade unionists a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties. [See Digest , op. cit., para. 179.] In the present case, the Committee requests the Government to ensure that such attacks on union premises do not recur in future, and requests the Government to take severe measures against those responsible for this incident to ensure that they are punished, and to keep it informed in this regard.

The Committee's recommendations

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

Case No. 2001

Definitive report

Complaint against the Government of Ukraine
presented by
the Kharkov Region Trade Union Association

Allegations: Restrictions on the right of a trade union
to organize its administration and activities

463. The complaint of the Kharkov Region Trade Union Association is contained in a communication dated 25 December 1998. The Government sent its observation in communications dated 9 March and 20 August 1999.

464. Ukraine 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

465. In its communication dated 25 December 1998, the Kharkov Region Trade Union Association alleges a violation of Article 7 of Convention No. 87 by the judicial authority of Ukraine. The complainant organization explains that this violation concerns the refusal by the courts of Ukraine to examine the substance of a claim lodged by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" which is a member of the Kharkov Region Trade Union Association. In that claim, the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" asked the courts of Ukraine for the recognition of its right to organize the administration and the activities of its union.

466. The Free Trade Union of the joint-stock company "Kharkov Bearing Plant" had previously requested the "Kharkov Bearing Plant" company to provide premises for the use of its union committee in accordance with article 249 of the Ukraine Labour Code. This request was allegedly ignored by the management of the enterprise. Following that refusal, the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" lodged a complaint before the Ordzhonikidze District Court for the recognition of its right to organize its administration and activities. The District Court ruled on 13 September 1996 that there were no provisions in the legislation of Ukraine for the examination of the abovementioned dispute between two legal entities by a district court and that there was an indication that this was a matter for the arbitration courts. The District Court concluded that this dispute did not fall within the jurisdiction of the Ordzhonikidze District Court of Kharkov. The appeal lodged by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" before the Kharkov Regional Court and the Supreme Court of Ukraine was rejected on the same motives.

467. The complainant organization declares that articles 221 and 249 of the Ukraine Labour Code guarantee a trade union the right to lodge a complaint for the recognition of their trade union rights and those of its members before a district court. The complainant organization states further that a trade union and its members have the right to lodge a complaint in a court of law in order to have their trade union rights recognized and defended. The complainant organization based its argument on article 11 of the Law on Trade Union Rights and Guarantees of their Activities and article 24 of the Civil Procedural Code of Ukraine.

B. The Government's reply

468. In its communication dated 9 March 1999, the Government states that the Ministry of Labour and Social Policy, in consultation with the Supreme Court of Ukraine, had examined the complaint brought before the ILO by the Kharkov Regional Trade Union Association concerning the refusal of the courts to examine the claim made by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant". As the Supreme Court had indicated, the courts' position was based on section 24 of the Civil Procedural Code of Ukraine and section 12 of the Arbitration Procedural Code of Ukraine, according to which disputes arising in matters relating to civil and industrial relations in law between parties that are legal entities was subject to the jurisdiction of arbitration tribunals. It was on these grounds (the parties to this dispute being legal entities) that the union's formal request to the company for premises to be provided for the use of its committee was turned down on 13 September 1996 by the Ordzhonikidze District Court in Kharkov. However, the Government explains that this does not in any way imply that trade unions have no legal protection. A dispute of this type, as the union was informed, is subject to the jurisdiction of arbitration tribunals rather than that of the general courts. The Government adds that article 221 of the Ukraine Labour Code sets the procedure for examining individual labour disputes rather than disputes between two legal entities.

469. In addition, the Government explains that the substance of the dispute between the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" and the company can be summarized as follows: A number of different trade union organizations operate at the joint-stock company in question, namely the following: the Union of Automobile and Agricultural Machine-Building Workers (about 5,000 workers); the Free Trade Union of the All-Ukraine Workers' Solidarity Association (40 workers); and the Free Trade Union of the Undertaking (seven workers). The Government admits that article 249 of the Ukraine Labour Code provides that undertakings, establishments and organizations are required to provide trade union committees free of charge with premises and the necessary equipment for the work of the committee and for workers' meetings. Furthermore, the Government explains that section 4 of the Act concerning Collective and Workplace Agreements states that where there is more than one trade union or confederation of trade unions, or other body authorized by work collectives to represent them, in an enterprise or at the state, branch or territorial level, they shall establish a joint representative body for purposes of bargaining and concluding collective and workplace agreements.

C. The Committee's conclusions

470. The Committee notes that the Free Trade Union of the joint-stock company "Kharkov Bearing Plant", which is a member of the Kharkov Region Trade Union Association, had lodged a complaint before the Ordzhonikidze District Court, the Kharkov Regional Court and the Supreme Court of Ukraine. The substance of the complaint, which was never examined by the courts, concerned the granting of premises free of charge by the Kharkov Bearing Plant in favour of the Free Trade Union which regroups seven workers in an undertaking of over 5,000 workers. As it appears from the decision of the Kharkov Regional Court as well as the decision of 16 January 1997 of the Supreme Court of Ukraine, the Ordzhonikidze District Court was not the competent jurisdiction under the legislation of Ukraine as stated in article 24 of the Civil Procedural Code of Ukraine and section 12 of the Arbitration Procedural Code of Ukraine. The Committee also notes that according to the Civil Procedural Code of Ukraine and the Arbitration Procedural Code of Ukraine, trade unions have legal protection as they have the right to ask a court of law for the recognition of their trade union rights. However, the Committee notes that according to the Government, as well as according to the legal provisions in force in Ukraine and court decisions, disputes of this type are subject to the arbitration courts rather than general courts.

471. The Committee considers that since the Government has informed the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" of its right to address its claim before the arbitration court which is the competent body in this matter, this case does not call for further examination.

The Committee's recommendation

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

Case No. 2018

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

Complaint against the Government of Ukraine
presented by
the Independent Trade Union of Workers of the
Ilyichevsk Maritime Commercial Port (NPRP)

Allegations: Anti-union harassment; violations of the right to strike;
obstruction of collective bargaining; physical threats against the
President of the union; seizure of the union's financial records
and temporary closure of the union's bank accounts

473. On 23 February 1999, the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (NPRP) presented a complaint of violation of trade union rights against the Government of Ukraine. It subsequently supplied complementary information on the case in a communication dated 17 June 1999.

474. The Government sent its comments and observations concerning this complaint in a communication dated 21 May 1999.

475. Ukraine 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

476. In its communication of 23 February 1999, the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (NPRP) in Odessa region in Ukraine explains that it was founded in 1990 and that the authorities have since been conducting an anti-union campaign against it and its leaders.

477. In a detailed account of the situation, the complainant explains that on 18 December 1998, in accordance with its own statutes, the NPRP was to hold its conference and elections and that on 17 December, in accordance with the law and the applicable collective agreement, it sent a letter to the director of the port requesting that premises be made available for that purpose. However, the port management turned down the request, as it had done on several previous occasions.

478. According to the complainant, workers reported that management was forcing NPRP members to leave the union under threat of dismissal. Recently hired workers were allegedly forced to accept conditions of employment which prevented them from joining the NPRP. In one year, the union lost 1,000 of its 4,000 members.

479. The complainant adds that an association of younger workers was formed using funds provided by the port management. Members of the NPRP were asked to leave the union; the association signed an agreement with the port director obliging brigades of young workers to work in the port in the event of a strike.

480. The complainant explains that, faced with the illegal measures taken by the port director, the NPRP held a meeting on 25 June 1998 in order to discuss demands to be submitted to the director, in accordance with the Settlement of Collective Disputes Act. Although all the statutory procedures were respected, the NPRP's proposals were rejected and the union was thus forced to declare a strike as a last resort. On 18 August, the NPRP called a meeting of workers to discuss the strike declaration and issued a strike notice for 7 September. However, even before the strike was due to start, the port administration applied to the Odessa Regional Court which ruled that the strike was illegal. The NPRP then appealed against the initial ruling to the Supreme Court. That appeal was dismissed.

481. Subsequently, a meeting of all port workers was called by the port director on 4 September 1998. According to the complainant, 80 per cent of those participating in the meeting were heads of department, managerial staff or administrative employees. During the meeting, attacks were directed against the NPRP. A workers' council was set up without any legal basis. From then on, the council has usurped the place of the independent trade union. The meeting declared a moratorium on strikes, which means, according to the complainant, that the port director took it upon himself to abolish the right to strike.

482. A proposed new collective agreement was then presented to the union by the port administration. The agreement represented a deterioration of the legal, financial and social situation of workers. The NPRP requested in vain that conciliation proceedings be started. It was warned verbally that if it rejected the proposal, the new collective agreement would be adopted at a meeting of the workforce and signed by the workers' council.

483. The port management also initiated proceedings against workers' representatives who had criticized management. The Ilyichevsk Prosecutor brought a claim for 1 million hryvnas (about US$300,000) in damages before the Odessa Arbitration Tribunal at the request of the Ilyichevsk port.

484. Furthermore, the prosecutor, acting at the request of workers who were not members of the NPRP, confiscated the union's documents, initiated criminal proceedings against the union's President, Mr. Boychuk, and his legal adviser, Mr. Tatarnikov, and ordered the closure of the union's bank accounts for eight days. The President of the NPRP was prohibited from leaving the City of Ilyichevsk or from speaking at the conference of the Confederation of Free Trade Unions of Ukraine which was held on 23 December 1998 in Kiev. Finally, according to the complainant, an attempt was made by persons unknown with the help of the police to abduct the union's President.

485. The NPRP also states that a government commission visited the port after the complaint had been lodged with the ILO. The commission spent two days meeting representatives of the management, the unions and public organizations, but only three hours talking to NPRP leaders. During these talks, none of the points raised in the complaint was discussed. The commission took the side of the employer and put pressure on the union to make concessions. Realizing that this approach would not work, the commission left for Kiev, having first indicated that other ways of influencing the union would be found, which the NPRP interpreted as a threat.

486. The complainant also refers to threats of dismissals made on 27 May 1999 against NPRP members and in particular against one union officer, Mr. Loshmanov, for having asked the port management to explain the excessively high price of tomatoes grown within the port area, and threats to destroy the NPRP.

487. The complainant also mentions a meeting of Work Brigade No. 301 on 22 December 1998 at which, according to the union, it was said that the independent union would be dissolved on the ground that it did not meet the requirements of the management. At the end of the meeting, sheets of paper were distributed to workers who were invited to indicate in writing their intention to leave the independent union. Mr. Proskurin, a member of the NPRP who protested against these illegal demands, is said to have been subjected to intense psychological pressure which led to his being hospitalized for nervous depression. These facts were brought to the attention of the commission and were supported by the victim himself but no appropriate response from the commission followed.

B. The Government's reply

488. In its reply of 21 May 1999, the Government states that the complaint of the NPRP was examined by the Ministry of Labour and Social Affairs jointly with the National Council for Social Partnership and the National Mediation and Conciliation Service, assisted by the labour inspectorate, and that a commission had visited the port.

489. Relevant documents from the courts and the prosecutor responsible for the transport sector were studied and interviews were conducted with the port management and the different unions, namely, the Trade Union of Maritime Transport Workers of Ukraine (PRMTU), with 4,922 members in the port, the NPRP (the complainant), with 2,874 members, the Trade Union of Service Workers (93 members), the Trade Union of Professionals, Dockworkers and Mechanics (55 members) and the Engineers' and Technicians' Union (32 members).

490. The Government acknowledges that on 17 December 1998 the port management received letters from two organizations, the PRMTU and the NPRP, concerning their respective conferences on 18 December 1998. Given the very short notice and the fact that these events would entail the absence from the workplace of workers elected as delegates at a critical period in the production process at the end of the year, the management suggested that the unions postpone the meetings until January 1999.

491. The PRMTU agreed to hold its conference on 22 January 1999, but the NPRP refused to postpone its conference. According to the Government, the management's attitude was justified because holding the meetings in January would have allowed a discussion of the undertaking's financial results for the past year; the management's action could therefore not be construed as obstruction of trade union activities. The Government also states that the complainant, the NPRP, has operated in the port since 1990, that its conferences have been postponed for objective reasons on only two occasions, in June and December 1998, and that allegations that this has been a frequent occurrence are untrue. The Government emphasizes that, in accordance with section 250 of the Labour Code, the management of the port made facilities available to the trade unions to allow them to carry out their work. The NPRP was given premises, office furniture and telephones which were to the satisfaction of the President, as he himself told the government commission. Furthermore, according to the Government, the facilities given to the committee of the NPRP are superior to those of its rival, the PRMTU, although the latter represents more workers (31.1 per cent of the port workforce).

492. The officers of the other trade union committees have denied allegations that there were acts of interference by the port management in the activities of the unions or that pressure was brought to bear on NPRP members to leave the union. The NPRP has not provided any evidence from witnesses to support its allegation and, according to the Government, no complaint from workers was brought before the commission.

493. On the contrary, when the government commission examined the case, and in particular the written letters of resignation from the NPRP (the Government acknowledges that 1,000 workers recently resigned from the union), it found nothing which, either directly or indirectly, could have been construed as pressure on the workers concerned to resign. Mr. Boychuk himself is said to have confirmed this. Similarly, documents from the personnel department contain no evidence that hiring is conditional on membership of any particular union.

494. The Government admits that on 28 August 1998, an association of young port workers was set up and registered by the Ilyichevsk City Council. The aim of the association, which has 418 members aged between 16 and 33 years, is to help young workers realize their creative potential and achieve their goals in all areas of life; to defend the rights and interests of young workers; to develop international cooperation, tourism and sport; and to promote respect for universal human values. The Government explains that it is not necessary to leave any other public association or trade union in order to join this young workers' association, as the complainant alleges; most of its members also belong to other trade unions and include 81 members of the NPRP. The agreement between the association and the port management, which was signed on 26 December 1998, contains more specific measures to promote the social development of these young workers. According to the Government, the clauses in the agreement relating to the association's right to set up work brigades do not violate trade union rights, nor are the association's activities those of strike-breakers.

495. The Government confirms that on 4 September 1998, a workforce meeting took place to discuss the results of the port's activities over the previous seven months and measures to stabilize production and economic activity. Of the 183 elected delegates, 107 belonged to the PRMTU, 46 to the NPRP, three to the Service Workers' Union, and 27 belonged to no union at all. The Government maintains that only 19.6 per cent of the delegates were managerial staff, deputy or assistant directors or department heads, not 80 per cent, as the complainant claimed.

496. At the request of the delegates, the issue of setting up a workers' council was discussed at the meeting. Of the 28 members who should have been members of this council, only 18 were elected by secret ballot. Ten candidates, including officers of the two major unions, the PRMTU and NPRP, failed to win enough votes. The other members of the council should be elected at the next conference. It was also decided that the members of the council would represent workers and managers on an equal footing (14 members for each side). The Government also claims that the respective powers of the council and the trade union organizations are clearly defined, a fact that is evidenced by the minutes of the meeting of 24 June 1998 of the commission established to review the port's internal regulations. These minutes were signed by representatives of management and of the trade unions, including the NPRP. The allegation that the workers' council was infringing the rights of the NPRP to defend workers' interests is, therefore, according to the Government, without foundation.

497. The Government acknowledges that, during the meeting in question, delegates voted for a moratorium on strikes. The visiting government commission considers that this came about, firstly, as a result of the situation which arose in the workforce after the court ruling that the planned strike was illegal, and secondly, as a result of the diametrically opposed views of the great majority of the workers, on the one hand, and of the NPRP representatives, on the other, concerning the manner in which the port management handles economic and social development activities. The Government considers that under the terms of the collective agreement, the port workers enjoy considerable benefits which most of them value. The Government points out that in 1999 the average wage of the port workers was 514 hryvnas and that of stevedores and machinery operators was 820 hryvnas, as opposed to a national average wage of 166.6 hryvnas.

498. The Government confirms that the port management proposed a new collective agreement for 1999. In accordance with current legislation, a joint committee with 22 members was established with a view to conducting negotiations leading to a collective agreement. The workers' representatives on the committee included five NPRP members (the union has a total of 2,874 members), five representatives of the PRMTU (which has 4,922 members) and one representative of the non-unionized workers. The port management ensured that the unions and the commission had all the information needed to draft the agreement, including documents concerning the social, economic and financial situation of the undertaking.

499. The Government also acknowledges that the proposed collective agreement which was drafted on the basis of current legislation differs considerably from the previous agreement. According to the Government, it reflects a position of principle agreed by management and the unions. Unlike the previous collective agreement, it does not contain any clauses contrary to current legislation. The Government maintains that this implies neither a worsening of the legal, financial and social position of port workers, as the complainant claims, nor a move to sideline the NPRP and other unions from the task of defending workers' social and economic rights.

500. According to the Government, within the joint commission the NPRP officers obstructed any attempts to reach an agreement and refused to allow the matter to be discussed by a workers' meeting, as is required by the Ukrainian Act on collective agreements.

501. The port management was also inflexible in its attitude towards the wording of clauses in the collective agreement defining the specific powers of workers' representatives with regard to the drafting of the agreement. The parties did not establish a consultative committee. The port's internal regulations do not provide for a specific representative body empowered to sign a collective agreement on behalf of the workforce.

502. According to the Government, the problem is not that the port management has obstructed the NPRP's legitimate activities, but rather, that the NPRP's own President and activists have seen fit to disregard the other four unions present in the port and have refused to cooperate with them.

503. The Government considers that the vote for strike action by the NPRP conference of 18 August 1999 was a flagrant violation of the Settlement of Collective Labour Disputes Act. There was no recourse to arbitration or conciliation proceedings which could have resolved the matter. In some departments, there was no meeting to elect delegates to the meeting which was held for the purpose of voting on strike action. Not all of the port's 9,236 workers were informed of the vote. According to the Government, most of the workers employed in the port's eight terminals were against strike action.

504. The government commission also examined the court rulings handed down in the present case. It would appear that the judicial authorities took their decisions in the light of the fact that the port operates continuously and that, according to the Transport Act, strikes are prohibited in continuous-operation transport undertakings. The unlawful nature of the strike was confirmed by the National Mediation and Conciliation Service.

505. Finally, the Government indicates that at the request of the Ministry of Labour, the State Prosecutor's Office will be conducting an inquiry with a view to verifying the information contained in the complaint alleging that the management violated the rights of the NPRP and of its President.

C. The Committee's conclusions

506. This case concerns allegations of violations of freedom of association committed by an employer and the public authorities, namely: (1) the refusal by an employer to provide a trade union with premises for its conference; (2) pressure by an employer to force members of the complainant trade union to resign from it; (3) use of the employer's own funds to set up a young workers' association which signed a no-strike agreement; (4) a workforce meeting called by the employer and controlled by management which agreed to a moratorium on strike action, and the establishment by the employer of a workers' council; (5) pressure on the complainant trade union aimed at forcing it to enter into a new collective agreement, and threats to have the agreement signed by the management-controlled workers' council in the event of refusal; (6) court rulings that a planned strike in the port was illegal; (7) various attempts to obstruct the work of the union, such as the seizure of financial records and closure of bank accounts; and (8) pressure on workers, acts aimed at curtailing freedom of movement, an attempt to abduct the President of the union with the help of the police.

507. As regards the employer's refusal to provide the complainant with premises for its conference, the Committee notes the Government's statements to the effect that the same decision was taken with regard to the NPRP's rival organization and that is was taken owing to the very short notice given (one day) and to the advantage in postponing the meeting for a month to allow discussion of the undertaking's financial situation. While stressing that the organization of a trade union conference is a matter for the union concerned and should not be subject to interference by the employer, the Committee considers that so short a period of notice may justify the employer's refusal to provide premises. The Committee also notes that the NPRP was able, despite the refusal to provide premises, to hold its conference as planned.

508. As regards the allegations that pressure was brought to bear by the employer to force workers to leave the complainant union, the Committee notes that according to the Government, the commission sent to the port found no evidence, either direct or indirect, that any such pressure had been put on workers. The Committee notes nevertheless that, according to the Government itself, more than 1,000 workers recently resigned from the complainant union. The Committee also notes the lack of any reply from the Government concerning specific allegations that a declaration had been made at a work brigade meeting that the independent trade union would be dissolved because it did not meet the requirements of the port management, that sheets of paper were distributed to workers in order to invite them to state in writing their intention to leave the independent union, and that a union member who protested against these illegal demands was subjected to psychological pressure, as the victim himself told the government commission.

509. Under these circumstances the Committee is bound to draw the Government's attention to the fact that it can be very difficult to prove that an employer has tried to induce a worker to leave a trade union when workers fear that they may lose their jobs. Given the large number of "resignations" from the complainant union (more than 1,000, or almost one-quarter of its total membership), the Committee considers that there should be another inquiry by an independent body which has the confidence of both parties, with a view to establishing the circumstances of these resignations and assessing the reliability of the allegations. If it is found that pressure was brought to bear on the workers to leave the union, the Committee requests the Government to ensure that this does not recur and to keep it informed of the outcome of the inquiry.

510. As regards the allegation concerning the use of the employer's own funds to set up a young workers' association which signed an agreement under the terms of which young workers would be required to work in the port in the event of a strike, the Committee notes that the Government denies the allegation that the clause allowing the organization to set up work brigades violates trade union rights, since the activities of the association in question do not, according to the Government, under any circumstances include strike-breaking. The Committee notes that, according to the evidence supplied with the complaint, the agreement contains no specific "no-strike" clause. It also notes that, according to the Government, several members of the young workers' association also belong to the complainant union, the NPRP. In the opinion of the Committee, there is nothing in the file which it has in its possession to indicate that the association was set up in order to weaken the position of the complainant or to obstruct its activities. However, the Government should ensure that the functions carried out by the young workers' association do not encroach on the normal activities of a trade union organization.

511. As regards the workforce meeting called by the employer on 4 September 1998 in which, according to the complainant, 80 per cent of the participants were managerial staff or administrative employees, the Committee notes that, according to the Government, only 19.6 per cent of the delegates at this meeting were managerial staff and that of the 183 elected delegates, 107 belonged to the Trade Union of Maritime Transport Workers of Ukraine (PRMTU), 46 to the NPRP, three to the Service Workers' Union and 27 were not unionized. The Committee has taken note of the minutes of this meeting of 4 September 1998 supplied with the complaint, which show that the meeting took place in the presence of the municipal authorities, and that it censured the NPRP's actions in calling for strike action and declared a moratorium on strike action for as long as the country's economic difficulties continued. None of the ten candidates from the major trade unions (the NPRP and the PRMTU), including the two leaders, Mr. Boytchuk of the NPRP and Mr. Bryzgalov of the PRMTU, were elected to the workers' council.

512. Given the contradictory statements of the complainant and the Government concerning the representativeness of the workforce meeting, the Committee is unable to express an opinion on this point. However, the Committee considers that the functions of such workers' meetings should not encroach on the role of the trade union organizations. It would appear in the present case that the meeting assumed certain trade union functions by declaring a moratorium on strikes. The Committee is confirmed in this view by the fact that the port management threatened to have the new collective agreement signed by the workers' council if the complainant refused to do so. In this regard, the Committee recalls that, according to the Collective Agreements Recommendation, 1951 (No. 91), "For the purpose of this Recommendation, the term 'collective agreements' means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more representative workers' organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other." In this regard, the Committee has previously emphasized that the Recommendation in question stresses the role of workers' organizations as one of the parties in collective bargaining. Direct negotiation between an undertaking and its employees, bypassing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 786.] The Committee therefore considers that the Government should see to it that activities which naturally pertain to trade unions are carried out by trade union organizations that are independent of employers, and in particular that workers' collectives do not encroach on the normal functions of trade unions, particularly with regard to strikes and collective bargaining.

513. With respect to the notice of strike action given by the complainant after a request had been made, according to the complainant, for conciliation proceedings to be started, the Committee has taken note of the two court rulings supplied with the complaint that the planned strike was illegal. The Committee notes that the Odessa Regional Court considered that the available dispute settlement procedures had not been exhausted and that no attempt at conciliation had been made. The court ruled that the port provided a continuous service and that, in accordance with section 18 of the Transport Act which prohibits strike action in such cases, the strike notice should be declared illegal.

514. In cases concerning violations of the right to strike, the Committee has always recognized the right to strike of workers and their organizations as a legitimate means of defending their economic and social interests. It has also considered that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations. [See Digest, op. cit., paras. 474 and 498.] The Committee has also emphasized that while the right to strike may be restricted or prohibited 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, provided that the workers are given appropriate guarantees, port activities generally do not constitute essential services in the strict sense of the term, although they are an important public service in which a minimum service could be required in case of a strike. [See Digest, op. cit., paras. 526, 545 and 564.] The Committee, therefore, requests the Government to amend section 18 of the Transport Act to ensure that it cannot be construed as prohibiting strikes in ports.

515. As regards the allegation that threats were made against the leaders of the complainant union and against the union itself (seizure of financial records, closure of bank accounts, pressure, infringements of freedom of movement and an attempt to abduct the President of the NPRP), the Committee notes the Government's general statements to the effect that the Office of the State Prosecutor has been ordered to conduct an inquiry. The Committee is bound to express its concern at the nature of the allegations in question which, if true, would constitute grave violations of freedom of association. The Committee requests the Government to ensure that the inquiry is conducted with diligence and to keep it informed of the findings.

The Committee's recommendations

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

Case No. 2038

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

Complaint against the Government of Ukraine
presented by
the Free Trade Union's Federation of Ukraine

Allegations: Adoption of legislation contrary to
freedom of association

517. The complaint of the Free Trade Union's Federation of Ukraine is contained in communications dated 26 February and 2 July 1999. The Government sent its observations in a communication dated 30 July 1999.

518. Ukraine 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

519. The Free Trade Union's Federation of Ukraine states firstly that it is opposed to certain provisions, in particular articles 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities", which was recently adopted by the Supreme Rada of Ukraine. The complainant also explains that under the veto procedure, the President of Ukraine gave back the law for revision but did not request in his observations that the content of articles 11 and 16 be modified. Therefore, although the abovementioned Act is still being discussed by the Supreme Rada of Ukraine, the complainant maintains its position concerning the need to amend articles 11 and 16 of the Act.

520. More specifically, the Free Trade Union's Federation of Ukraine alleges that article 11 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" violates Article 2 of Convention No. 87. Article 11 provides that "... trade unions shall have the district status if they have their organizational links in the majority of administrative territorial units of the same district and in the cities of Kiev and Sevastopol; ... or they comprise the majority of trade union members of the same vocation or occupation working in the district and in the cities of Kiev and Sevastopol. The All-Ukrainian status of trade unions shall be determined on the basis of one of the following principles: (1) the existence of organizational trade union links in the majority of those administrative territorial units of Ukraine; (2) the existence of organizational trade union links in the majority of those administrative territorial units of Ukraine where the enterprises, institutions and organizations of a certain industry are located and which unite at least one-third of the trade union members of the industry; (3) the association in a trade union of the majority of trade union members of a certain vocation working in Ukraine.

521. The complainant alleges that the provisions of article 11, by stipulating the conditions for providing trade unions with local, regional and All-Ukrainian status -- according to which in order to provide a trade union with regional and All-Ukrainian status it should unite more than half of the workers of the appropriate industry or should have its organizational units in the majority of administrative territories of Ukraine -- are violating the constitutional principle of the equality of all trade unions. According to the complainant, this article creates unequal conditions for the trade unions of Ukraine since only the state-supported trade unions comprising the Federation of Trade Unions of Ukraine would meet such requirements.

522. Another point raised by the complainant concerns the provisions of article 16 of the abovementioned law. This article provides that "the legalization of the trade unions and their associations shall be compulsory and shall be carried out by the way of their registration, ... the application for registration shall be considered within one month from the date of the receipt of the documents. During this period of time, the legalizing body shall carry out the verification of the correspondence of the status with the provisions of article 11 of the present law, introduce the organization into the register of the association of citizens and issue a certificate". According to the complainant, this article entails that a trade union is considered to be established only after its registration by the appropriate state bodies. This violates the Constitution of Ukraine and it would lead to state interference in the process of creating a trade union and would bring the end of the independent trade union movement in Ukraine.

523. In addition, the complainant finds unacceptable part 2 of the final provisions of the Act which provides that "trade unions and their associations which have already acted in the territory of Ukraine shall be obliged within six months from the entry into force of the present law to be legalized in accordance with this law without paying any registration fee". This would entail the automatic dissolution of all trade unions which do not comply with the provisions of articles 11 and 16 of the new law.

B. The Government's reply

524. The Government states firstly that the allegation according to which article 11 of the law on "Trade Unions, their Rights and Safeguard of their Activities" violates the principles of equality, independence and democracy in the establishment of free development of trade unions is without foundation. The Government explains that article 2 of the Act states that the purpose of setting up trade unions is to represent, implement and defend citizens' labour and socio-economic rights and interests. Under the Act, a union's right and powers to defend its members' interests does not depend on its status. As regards the status of trade unions, the Government insists that this is established, in Ukraine as in many other countries, in order to determine the representation of a union at the national, regional and branch levels for the purpose of consultations, collective bargaining, participation in tripartite bodies, etc.

525. Concerning article 16 of the Act, under which unions must obtain legal recognition through registration, the Government explains that legal recognition means official recognition of trade unions once they have been established and therefore cannot be regarded as an "authorization".

526. Finally, the Government points out that the Act was drafted in direct consultation with union representatives. In particular, the Supreme Council's Social Policy and Labour Affairs Committee set up a consultative commission whose members included representatives of all the national trade unions. According to the Government, the final versions of articles 11 and 16 were proposed by trade union representatives. The Government acknowledges that a number of provisions in the Act are indeed not consistent with the Constitution and the national legislation of Ukraine but it is precisely for that reason that the President has referred the Act back to the Supreme Council for a further reading.

C. The Committee's conclusions

527. The Committee notes that this case relates to allegations concerning the adoption of a legislation on trade unions contrary to the principles of freedom of association. More specifically, the Committee takes note of the provisions of sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" which are the main issues of the complaint.

528. With regard to section 11 of the Act, the Committee notes that in order for a trade union to obtain district or All-Ukrainian status, it should unite more than half of the workers of the same vocation or occupation or should have its organizational units in the majority of administrative territorial units of the same district or in the majority of administrative territorial units of Ukraine. It also notes that article 16 provides for the compulsory registration of a union which will be carried out by a legalizing body who will verify the correspondence of the status of the union in accordance with the requirements of section 11. The Committee further notes that according to the final provisions of the Act, the existing trade unions will have six months from the date of entry into force of the Act to regularize their situation by registering themselves, otherwise their activities will become illegal.

529. Concerning section 11 of the Act, the Committee recalls that requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws. In fact, any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention [see General Survey on freedom of association and collective bargaining, 1994, para. 111].

530. Concerning section 16 of the Act, the Committee recalls that national legislation providing that an organization must deposit its rules is compatible with Article 2 of the Convention if it is merely a formality to ensure that those rules are made public. However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association. Furthermore, the Committee recalls that Article 7 of Convention No. 87 provides that "The acquisition of legal personality by workers' and employers' organizations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof". A legislation is thus compatible with the terms of the Convention if it automatically confers legal personality on the organization in question at the time of establishment, be it without formalities being observed, when the by-laws are deposited, or following a registration procedure or other formalities which are compatible with the Convention. However, in the present case, it appears that the provisions of sections 11 and 16 of the Act, which confer a certain status to a union if it unites more than half of the workers of the same vocation or occupation and then has to be registered in accordance with the status it has been granted, are not compatible with the provisions of Convention No. 87. The Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. For instance, the requirement that a trade union shall have a registered office is a normal requirement in a large number of countries. However, these requirements must not be such as to be equivalent in practice to previous authorization. Even in cases where registration is optional but where such registration confers on the organization the basic rights enabling it to further and defend the interests of its members, the fact that the authority competent to effect registration has discretionary power to refuse this formality is not very different from cases in which previous authorization is required [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 244 and 253; see also General Survey on freedom of association and collective bargaining, 1994, paras. 70 and 76].

531. Concerning the final provisions of the Act which grant six months to existing unions to regularize themselves through registration, the Committee is of the view that such provisions are not in themselves problematic. However, in this case, considering the requirements of sections 11 and 16 which are not compatible with the principles of freedom of association, these final provisions become unacceptable since they would amount to an administrative dissolution for unions which do not comply with them.

532. Finally, the Committee notes that the Government acknowledges that certain provisions of the Act are not consistent with the Constitution as well as national legislation. The Committee is of the view that in this context, new consultations with all trade unions, including the complainant organization, should take place in order to eliminate the shortcomings of the Act and it therefore requests the Government to take all necessary measures to bring sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" into full conformity with the provisions of Convention No. 87. The Committee requests the Government to keep it informed in this regard.

D. The Committee's recommendations

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

Case No. 1986

Interim report

Complaint against the Government of Venezuela
presented by
the Single Union of Workers of FUNDARTE
(SINTRAFUNDARTE)

Allegations: Dismissals and other anti-union acts
and failure to deduct trade union dues

534. The complaint in the present case involves a communication from the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) dated 1 October 1998. The Government sent its observations in communications dated 4 November 1998 and 12 October 1999.

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

A. The complainant's allegations

536. In its communication dated 1 October 1998, the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) states that the Federal District Foundation for Culture and the Arts (FUNDARTE) is a Venezuelan State foundation dependent on the mayor's office of the Autonomous "Liberating" Municipality of the Federal District and that the municipal authority is competent to define the mandate of FUNDARTE. In Venezuela, workers of state foundations are covered by the sphere of application of the general labour legislation, meaning basically the Organic Labour Act.

537. The complainant reports that on 8 September 1997, a group of workers representing the absolute majority of FUNDARTE's staff presented to the Federal District Labour Inspectorate a request for SINTRAFUNDARTE to be entered into the trade union's register. It adds that the workers' group took the initiative in founding a union organization as a rebuff to the accords reached in the new collective agreement between the employer and the trade union representing the industry, of which they were members at that time; the complainant reports that the workers had rejected the employer's wage increase proposal unanimously and publicly at two general assemblies of members, but that the executive committee of the industry trade union had nevertheless accepted the proposed increase and decided to sign the collective agreement, flouting the democratic decision of its members and leading to mass resignations of membership.

538. The complainant reports that on 28 October 1997, the Federal District Labour Inspectorate entered the Single Union of Workers of FUNDARTE (SINTRAFUNDARTE) into the register and that from this date the FUNDARTE management began a policy of anti-union discrimination against the workers belonging to that new union, especially against the members of the executive committee, and likewise a policy of favouritism towards the industry trade union which retained membership among a minority of FUNDARTE's workers. Specifically, the complainant alleges that:

539. The complainant reports, in connection with the last claims (alteration of wage payment procedures, wage reductions and transfer of the secretary-general), that the members of the executive committee lodged actions with the Federal District Labour Inspectorate in March and April 1998. It adds that although these proceedings should under the legislation take a maximum of approximately one month (21 working days), no decision has been reached to date.

540. According to the complainant, the dismissals by the employer from 29 October 1997 to the present have affected only members of SINTRAFUNDARTE and are aimed at reducing the number of its members in order that it does not represent the majority of the workers and in order to benefit the industry trade union which signed the new collective agreement against its members' democratic decision. The complainant adds that the policy of favouritism pursued by FUNDARTE is also evidenced by the following:

541. The complainant declares that all of the allegations demonstrate on the part of FUNDARTE a clear policy of trade union favouritism against SINTRAFUNDARTE, implying a violation of ILO Convention No. 87.

B. The Government's reply

542. In its communication of 4 November 1998, the Government declares that the complainant's accusation is centred around presumed acts of anti-union discrimination committed by the Foundation for Culture and the Arts (FUNDARTE), an administrative body dependent on the mayor's office of the Autonomous Liberating Municipality of the Federal District (municipal executive authority). The Government explains that the actions described in the report can in some way be imputed to the Government of Venezuela, since it is clear that, however those actions may be judged, they are the result of measures by the municipal executive under the autonomy recognized by legislation; however, the Government of Venezuela (the national executive) has exercised all of the measures legally granted it under its mandate to protect the complainant's freedom of association.

543. In respect of the claim concerning a six-month delay by the Federal District Labour Inspectorate in deciding the petition "for re-employment and payment of wages due" lodged by a group of FUNDARTE workers, the Government reports that the petition for re-employment (or reinstatement in the previous post) is one of the mechanisms enshrined in Venezuelan labour legislation and guarantees the legitimate exercise of freedom of association through appropriate administrative proceedings substantiated and decided by a labour inspector. The subject of the petition for re-employment is expressly covered by section 454 of the Organic Labour Act, specifically for workers protected by trade union immunity who are subjected to dismissal, transfer or worsening of working conditions without the legally established authorization procedure having first been followed. It delimits the individual applicability of the standard in relation to those workers who are inalienable under the trade union immunity recognized by Venezuelan legislation in order to guarantee them full exercise of trade union activities.

544. Thus, the protection of freedom of association enshrined in Venezuelan legislation is twofold, with an administrative and a judicial aspect. The first requires the direct participation of the public executive authorities through the Ministry of Labour as the organ of the national executive which represents labour administration. That administrative protection consists of verifying certain procedures provided for in the Organic Labour Act, such as: (a) the procedure for assessment of infringement (authorization to dismiss); and (b) the procedure for re-employment or reinstatement in the previous post. Both procedures are substantiated and decided by a labour inspector. The final procedure under the administrative protection measures is the ultimate expression of the labour administration organs' penal function, expressly recognized in the Organic Labour Act: "section 443 -- Employers may not: ... Violation of these rules will be punished in the manner provided for by this law"; section 637: "An employer who violates the legal guarantees protecting freedom of association shall be subject to a fine of not less than ..."; section 639: "An employer who fails to comply with the order to re-employ definitively and securely a worker with trade union immunity ... shall be subject to a fine of not less than ..."; section 645: "If the sanctions by fine as established in this Article cannot be applied, the violators shall be arrested and held for one day for each quarter of a minimum salary up to a limit of 30 days". The powers of the labour administration extend as far as this.

545. The second, judicial, element of protection is outside the control and direction of the administrative organs and rather part of the strictly judicial realm, managed by a different public authority.

546. The Government states that one of the typical defence and protection mechanisms provided by the current labour standards can be seen in use in this case guaranteeing administrative protection. Specifically, a re-employment procedure was established, showing that the procedure enshrined in the legislation was applied and implemented effectively in order to protect through the administrative authorities the right to conduct trade union activity. Even the complainant admits this. The events, far from demonstrating a destructive attitude or violation on the part of the Government of Venezuela, show rather that the appropriate administrative procedures were applied to this case of workers invested with trade union immunity suffering infringement of their rights in the very course of exercising trade union activities. The sense of the administrative official's decision on the occasion of considering and proceeding with the petition submitted for re-employment or reinstatement in the previous post in no way relates to the objective of the procedure established in law; however, the effectiveness of this procedure lies not in a declaration that the claim is well founded, but in a verification of each and every one of the acts giving rise to it (and in any case the decision of the labour inspector was in this case favourable to the members of the complainant organization).

547. Thus, the protection and assurance of "adequate protection"referred to by the complainant are provided not by a declaration that the claim by the author of the petition "for re-employment or reinstatement in the previous post" is well founded, unless Venezuelan legislation recognizes -- as it does -- such a guarantee, expressly providing for the party which considers its trade union rights to have been infringed to have recourse to a labour administration organ in order properly to apply the re-employment procedure.

548. Consequently, in accordance with the Organic Labour Act, once the re-employment procedure had been verified, an administrative act was issued in which the labour official declared the petition well founded and ordered the reinstatement of the plaintiffs to their posts and the payment of the wages due. Given all of this, it does not appear that there has been a violation by the Government of Venezuela of the workers' trade union rights.

549. The Government states that the labour inspector's six-month delay in reaching a decision on the re-employment petition, claimed by the complainant to be a violation of Article 1 of ILO Convention No. 98, is, far from being such a violation, symptomatic of the real time for administrative proceedings in Venezuela; this situation is not in itself justifiable, but can be viewed with a certain tolerance in the light of its cause, which is related to structural problems of the Venezuelan public administration which there would be no sense in discussing in more detail. However, it is important to emphasize that the Labour Inspectorate before which the re-employment petition was brought was that of the Federal District, which, in view of its location and the territory it covers, receives the highest number of petitions. Nevertheless, without claiming this to be an excuse or still less a licence for such practices in future, it is an unfortunate fact of life which realistically means that six months is not in itself an excessive or strange delay. If the Venezuelan Organic Labour Act provides for a period within which the administrative body should provide a decision, this shows the legislator's intention that it should be provided as rapidly as possible; however, in this case, the high numbers of cases being submitted on a daily basis to the competent labour official make it impossible to fulfil this. In any case, beyond the stipulation of a period within which the petition should be considered, there is an ultimate obligation to process and decide the matter, which was fulfilled in this case.

550. Concerning the complainant's claim that the labour inspector's administrative decision that the re-employment petition was well founded and the consequent order that the reinstatement of the workers in their posts were challenged by the employer before a court and that its effects were suspended provisionally as a preventive measure, the Government wishes to emphasize that administrative protection is not the only aspect of the system for protection of freedom of association in Venezuela. The second aspect, judicial protection, is enshrined in section 456 of the Organic Labour Act and, with relevance to the case under examination, reads as follows: "The inspector shall reach a decision on the re-employment petition within eight working days of its submission. The decision is not subject to appeal, save that the parties retain the right of recourse to the relevant courts". Thus, the official's decision may be challenged in court.

551. In relation to this, it should be mentioned that the administrative decision by the labour inspector on the re-employment petition is an administrative act of a specific nature in that it is addressed to a particular person. The contents of that administrative decision issued by the Federal District labour inspector declaring well founded the petition for re-employment and payment of wages due draws by nature on the principles of administrative activity, which correspond to the limits and the discretion that belong to the administration. Thus, when FUNDARTE's legal representatives brought a legal appeal for annulment, they were making use of the resources which the law places at everyone's disposal for defence against actions by the public administration. The appeal process could not fail to take account of the labour administration's reasons in seeking to give effective protection to freedom of association. A labour inspector's actions in this respect could fail to be in accordance with the law and thus the affected party has every right to appeal against them.

552. It is necessary also to examine the issue of the lodging of an appeal against an administrative act together with a request for the act's effects to be suspended provisionally as a preventive measure. This is a precautionary measure requested by one of the parties which by nature is a precautionary arrangement adopted by the judge in view of the risk or danger that the sentence might be overturned. It is clear that in the case in point, the judge, before granting the preventive measure as requested, naturally assessed its propriety and verified the real existence of the impending risk. In the present case, the suspension of the effects of the administrative act declaring the re-employment petition well founded was an autonomous decision made by the judge at the party's request and is also a means of defence and upholding of a right, though by the legal rather than the administrative route. The information supplied by the complainant would seem to indicate something strange about the measure taken by the judge, yet this precautionary measure is a typical means of protection and defence in the legal realm and is recognized in Venezuelan legal standards. Consequently, it is considered that both the re-employment petition and the challenge to the administrative act which resolved the petition are appropriate measures provided for under Venezuelan legislation and demonstrate the protection of freedom of association by the Venezuelan State.

553. The Government concludes by declaring that it considers unfounded and inadmissible the supposed violations of workers' trade union rights alleged by the complainant.

554. As concerns the dismissal of 31 members of SINTRAFUNDARTE, the Government states in its communication of 12 October 1999 that the legal adviser of FUNDARTE (an institution falling within the Autonomous "Liberating" Municipality of the Federal District) indicates that these dismissals did not occur because of union membership but rather were the result of decisions taken by the Directors' Council and Executive Committee of FUNDARTE on the basis of Decree No. 20 of 10 June 1996 concerning the process of restructuring the dependent entities of the municipality, approved by the city council of Caracas. The Government adds that out of the 31 employees dismissed by FUNDARTE, 15 had voluntarily indicated that they wanted to receive their social benefits in accordance with the administrative decision of 19 May 1998 issued by the Labour Inspectorate of the Federal District. This means that the Government is now awaiting the tribunal decision concerning the reintegration and the payment of lost wages for the 16 workers who have decided to pursue their claims in court.

555. As concerns the matter of whether the conditions for payment of wages to the executive committee of SINTRAFUNDARTE were changed and whether their salaries were cut, the Government indicates that, according to the legal adviser of FUNDARTE, no such changes were made and the concerned persons had received a remuneration in conformity with the post which they occupied in the Foundation, just as everyone else in the institution.

556. As concerns the secretary-general of SINTRAFUNDARTE, the Government indicates that he had indeed been transferred for reasons of service, from one administration to another, within the principal headquarters of FUNDARTE, Bldg. Tajamar, Pent House, Central Park, which according to the FUNDARTE legal adviser in no way worsened his working conditions.

557. Finally, with respect to trade union dues, the Government states that they are no longer withheld from pay given that the administration of the internal affairs of FUNDARTE, through its personnel department, had not received any notification concerning the percentage which should be withheld, nor did it receive the necessary signed authorization from the members of SINTRAFUNDARTE in order to carry out the check-off referred to, but at no moment, as indicated by FUNDARTE, had the employer refused to discuss with the executive committee of the union.

C. The Committee's conclusions

558. The Committee notes that in the present case the complainant alleges that following its registration by the Labour Inspectorate, its members suffered a campaign of anti-union discrimination by the management of the Federal District Foundation for Culture and the Arts (FUNDARTE). Specifically, the complainant alleges: (1) dismissal of 41 union members -- 30 in October 1997 who had trade union immunity, and 11 in February 1998 -- and delays on the part of the administrative authority in resolving both a petition for the reinstatement of the 30 workers with trade union immunity and a subsequent suspension of the said reinstatement ordered by the administrative authority as a consequence of legal action by the employer; (2) alteration of payment procedures and reduction of the wages of the members of the SINTRAFUNDARTE executive committee, the transfer of the SINTRAFUNDARTE secretary-general, and delays in the administrative processes launched as a result of those acts of anti-union discrimination; (3) failure to deduct trade union dues from SINTRAFUNDARTE members' pay; (4) refusal on the part of the employer to hold discussions with the SINTRAFUNDARTE executive committee within the context of favouritism towards another trade union, obstructing of written communications between the executive committee and the workers and threats of reprisals against workers communicating with the members of the executive committee.

559. In respect of the allegation concerning the dismissal in October 1997 of 30 union members enjoying trade union immunity and the subsequent suspension of the reintegration ordered by the administrative headquarters as a result of the judicial action undertaken by the employer, the Committee notes that the Government refers to 31 dismissals (while the complainant only refers to 30 dismissals) and indicates that: (1) the dismissals were not due to trade union affiliation but rather to the decisions made by the Directors' Council and Executive Board of FUNDARTE on the basis of Decree No. 20 of 10 June 1996 concerning the process of restructuring of the dependent municipal entities; (2) 15 of the dismissed workers voluntarily decided to receive the social benefits in agreement with the administrative decision issued by the Labour Inspectorate of the Federal District dated 19 May 1998; (3) the decision of the judicial authorities concerning the reintegration of and the payment of lost wages to the 16 workers who pursued their claims is being awaited; and (4) the judicial appeal against the administrative decision requested as a preventive measure the suspension of the effects of the decision and the decision taken was an autonomous one made by the judge at the party's request and is also a means of safeguarding and defending rights. In this respect, the Committee observes that while the Government indicates that the institution has stated that the alleged dismissals did not occur as a result of the union affiliation of the workers in question but rather in application of a 1996 Decree concerning a process of restructuring, it also notes that these dismissals occurred one day after the registration of the complainant organization and that the administrative authority had ordered the reinstatement of the 30 dismissed trade unionists. In the circumstances, observing that the judicial authority provisionally suspended, until a decision was reached on the substance of the matter, the decision on reinstatement of the dismissed trade unionists and payment of their outstanding salaries, and taking into account the time that had passed since the dismissals (which took place in October 1997), the Committee deplores the delay in the handling of this case and requests the Government to take steps to ensure the reinstatement in their posts of the 30 workers with trade union immunity, without loss of pay, at least until the judicial authorities have made a definitive pronouncement on the subject. The Committee requests the Government to keep it informed of developments in that respect.

560. With respect to the allegation concerning delays on the part of the administrative authority in resolving the petition for the reinstatement of the 30 dismissed workers with trade union immunity (the case allegedly took six months), the Committee notes the Government's declaration that: (1) on implementation of the procedure provided for under the Organic Labour Act for protection by the administrative authorities of the right to conduct trade union activities, the administrative authority ordered the reinstatement of the dismissed workers and payment of the wages due; and (2) the six-month delay by the labour inspector in reaching a decision on the reinstatement petition was "symptomatic of the real time of administrative proceedings in Venezuela, not in itself justifiable, but related to the structural problems of the Venezuelan public administration".

561. In this connection, the Committee observes that the Organic Labour Act provides in the case of dismissal of workers protected by trade union immunity for a procedure which should last no longer than 19 days (sections 454, 455 and 456 of the Act). In the circumstances, the Committee requests the Government to take the necessary steps to ensure that any action brought before the administrative authorities relating to workers with trade union immunity is resolved in the period enshrined in the legislation.

562. In respect of the allegations concerning the changes to the conditions of payment (by cheque and not as done traditionally by means of deposit in the bank account) and the cut in wages of the members of the executive committee of SINTRAFUNDARTE, the Committee notes the Government's indication that, according to FUNDARTE, no such changes were made and the workers in question received a remuneration in accordance with the post they occupied in the Foundation. The Committee observes the complainant's indication that it petitioned the Labour Inspectorate of the Federal District on this matter in March 1998 and that no decision has yet been rendered. In these circumstances, the Committee expresses the hope that the administrative authorities will render a decision in this respect in the very near future and requests the Government to keep it informed of the results of this petition.

563. As concerns the allegation of the transfer of the secretary-general of SINTRAFUNDARTE (Iván Polanco), the Committee notes the Government's confirmation that his transfer occurred for service reasons, which according to FUNDARTE did not result in a worsening of his working conditions. The Committee notes the complainant's indication that it petitioned the Labour Inspectorate of the Federal District on this matter in April 1998 and that no decision has yet been rendered. In these circumstances, the Committee expresses the hope that the administrative authorities will render a decision in this respect in the very near future and requests the Government to keep it informed of the results of this petition.

564. As concerns the allegation of the absence of check-off of trade union dues of SINTRAFUNDARTE members, the Committee notes the Government's statement that the dues were not withheld because the administration for internal affairs of FUNDARTE had not yet received any notification concerning the percentage to be withheld, nor had it received the necessary signed authorization from SINTRAFUNDARTE members. In this respect, the Committee requests the Government to ensure that FUNDARTE proceeds with the withholding of the amount corresponding to the trade union dues and transfers it to SINTRAFUNDARTE as soon as it receives the required information in respect of the amount to be withheld, as well as the authorization of its members.

565. Concerning the alleged refusal of the employer (FUNDARTE) to discuss with the SINTRAFUNDARTE executive committee within the context of favouritism to another trade union, the Committee notes the Government's indication that, according to FUNDARTE, at no moment did FUNDARTE refuse to discuss with the executive committee. In these circumstances, and noting the contradiction between the complainant's and FUNDARTE's versions, the Committee requests the Government to carry out its own investigation into the matter and to keep the Committee informed in this regard.

566. Finally, the Committee urges the Government immediately to communicate its observations concerning the following allegations: (1) the dismissal of 11 SINTRAFUNDARTE members in February 1998; (2) the obstructing of written communications between the SINTRAFUNDARTE executive committee and the workers; and (3) the threats of reprisals against workers communicating with the members of the executive committee.

The Committee's recommendations

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

Case No. 1993

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

Complaint against the Government of Venezuela
presented by
the Trade Union of Public Employees of the Venezuelan
Scientific Research Institute (SEPIVIC)

Allegations: Obstruction of collective bargaining procedure for
public servants; refusal to negotiate certain clauses; delay in
ruling on administrative appeals

568. The complaint in this case is contained in a communication from the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) dated 27 October 1998.

569. The Government sent its observations in a communication dated 19 October 1999.

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

A. The complainant's allegations

571. In its communication dated 27 October 1998, the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) states that on 28 October 1997 it initiated the application procedure for the negotiation of a collective agreement, with the aim of regulating the conditions of employment of public servants employed in the Venezuelan Scientific Research Institute (IVIC). The application process proved to be extremely complicated and slow, given that once the draft collective agreement has been submitted to the Directorate of the National Inspectorate and Collective Labour Affairs, it has to be transmitted to the Office of the Public Prosecutor of the Republic, which in turn sends it to the Central Coordination and Planning Bureau of the Office of the President of the Republic (CORDIPLAN), which then sends a request for information to the public agency directly involved in bargaining, in this case the IVIC. The bargaining procedure is governed by Decree No. 1599, which sets forth partial regulations under the Organic Labour Act for the negotiation of collective agreements of officials or employees in the national public administration, and was published in Official Gazette No. 34743, dated 26 June 1991. The phase described above lasted a total of nine months from the date on which the collective agreement was submitted to the date of the first meeting between the trade union organization, the agency involved and the Public Prosecutor's Office.

572. The complainant adds that following this lengthy waiting period, the IVIC, the Public Prosecutor's Office and the trade union held their first meeting in the collective bargaining procedure on 23 July 1998, at which the IVIC stated its refusal to initiate collective bargaining, alleging that CORDIPLAN had produced a technical/financial report which indicated that this agency did not have sufficient budgetary resources for 1998 to deal with or cover fully or in part the aspirations set forth in the draft collective agreement. Moreover, as regards the financial commitments that would be made under the collective agreement, it pointed out that this would require the prior approval of the President of the Republic, through the Council of Ministers, in accordance with section 527 of the Organic Labour Act. Lastly, it stated that its refusal to negotiate was in conformity with section 2 of the abovementioned Decree No. 1599, i.e. the technical and financial requirements laid down by the Executive for collective bargaining. At the same meeting, the Public Prosecutor of the Republic unilaterally imposed the requirement that:

573. The complainant points out that the arguments put forward by both the IVIC and the Public Prosecutor of the Republic, in the case of the IVIC, led to the obstruction of the exercise of the right to collective bargaining and, in the case of the Public Prosecutor, subjected the content of bargaining to previously and unilaterally decided parameters, and to control or powers of veto that infringed the voluntary and free nature of bargaining, which means that the validity and effect of agreements were made conditional on prior approval by the Government. Faced with the above, the complainant denounced the fact that the conduct of the government authorities violated and infringed ILO Conventions Nos. 87 and 98. The initial position of the IVIC and the complainant led to a dispute which should have been settled by the Ministry of Labour. On 30 September 1998 the Directorate of the National Inspectorate and Collective Labour Affairs issued Administrative Decision No. 021, pursuant to its competence to settle the dispute that had arisen between the parties with respect to whether or not to continue collective bargaining. This decision only takes into account the arguments put forward by the IVIC and the other official bodies involved (the Public Prosecutor and CORDIPLAN), ignoring the allegations and defence put forward by the trade union, including that relating to the violation of international labour standards. The decision is based on the conclusions drawn by a report previously carried out by CORDIPLAN, citing the IVIC's insufficient budgetary resources; it states that the report is in conformity with the guidelines and directives issued by the Executive for negotiating conditions of employment with public servants; and it infers in advance that the commitments laid down in the collective agreement would exceed the IVIC's financial capacity. This is based on sections 2, 10 and 15 of Decree No. 1599; it also declares that it is unlawful or impossible to pursue the collective bargaining process for which the application had been made nearly a year earlier. In other words, the Ministry of Labour ordered that the collective bargaining process be terminated.

574. The complainant alleges that the free and voluntary nature of collective bargaining, as well as the obligation to encourage and promote the exercise of this fundamental right, have been infringed as follows: (1) the Public Prosecutor's Office, as director of the bargaining process and Attorney-General of the Republic, imposed the condition at the first stage of the bargaining process that financial clauses would be excluded from the discussions and any resulting agreements at the outset. It points out that it will be the Executive which will unilaterally determine the aspects of the agreement on this subject. It also points out that the clauses agreed on will be subject to financial studies carried out by the IVIC and final approval will be given by CORDIPLAN, which will be able to make any adjustments it sees fit to make in order for the agreement to be effective and valid. This initial position on the part of the Public Prosecutor's Office constitutes an imposition, since to oppose it would initially mean paralysing the bargaining process, since it is not possible to conclude any agreement or sign any minutes in the bargaining process that have not been drafted by the Public Prosecutor's Office; (2) the IVIC, as the agency directly involved, cites financial and budgetary reasons in order to refuse a priori to negotiate conditions of employment. In disregard of good faith, the IVIC requests that the bargaining process be declared inadmissible and that the Ministry of Labour terminate it, thus preventing the continuation of the bargaining effort, the application for which has lasted nearly a year. According to the complainant, the position taken by this official body presupposes that the collective agreement in any case includes clauses with a financial impact, overlooking the fact that the parties to bargaining may agree voluntarily and freely to postpone discussion of these clauses and focus initially on discussing and approving other contractual provisions relating to relations between the parties (union clauses), occupational safety and health, or others with a social content that do not involve any expense or that have only a slight or very limited impact on the budget; and (3) the Ministry of Labour, through the Directorate of the National Inspectorate and Collective Labour Affairs, when settling the dispute between the parties, upheld the IVIC's claim and ordered that the bargaining process be terminated, on the basis of a study previously carried out by CORDIPLAN citing alleged insufficient budgetary resources. Along the same lines, it considers that to continue bargaining would violate the directives and technical and financial requirements issued by the Executive, which were allegedly included in the report drawn up by CORDIPLAN. According to the complainant, the position taken by the Directorate of the National Inspectorate and Collective Labour Affairs constitutes a violation of the obligation to encourage and promote the exercise of the right to collective bargaining and also violates this right, since its decision has led to the termination of the process for which application had been made in 1997.

575. Lastly, the complainant states that the Executive, through the partial regulations governing the negotiation of collective agreements of officials or employees in the national public administration, carried out a series of acts of intervention with regard to the matters that are or have been the subject of collective bargaining, including the requirements and budgetary commitments undertaken in the course of bargaining. Under these provisions, the effect of agreements concluded by the parties in the process of collective bargaining shall be subject to or conditional on prior approval by the Public Prosecutor's Office and CORDIPLAN. Firstly, provision is made for control over the substance or content itself of the clauses of agreements by the Public Prosecutor in his capacity as moderator and director of the bargaining process. Pursuant to this, the agreements concluded by the parties have no validity, since their definitive form is shaped by the Prosecutor's declaration of conformity which must be imperatively recorded in each of the minutes drawn up in the process. Secondly, once the "definitive agreement" has been reached by the parties and the power of control mentioned above has been exercised, the Public Prosecutor submits the collective agreement to CORDIPLAN. This agency has the task of carrying out budgetary or financial control within a 30-day time limit starting from the date on which the agreements were received. This control takes the form of a binding or mandatory report containing a financial assessment of the agreements, a determination of the cost involved, the differences between the terms of the agreement and existing conditions of employment, and a conclusion to the effect that the terms of the agreement do not exceed the technical and financial requirements and limits previously fixed by the Government. According to the complainant, the control exercised by CORDIPLAN, in addition to constituting an obstacle to the bargaining process, implies a clear power of prior approval of collective agreements, since the effect of an agreement is conditional upon the issuance and notification of a report on the conformity of the agreements with the directives and policies formulated by the Government as part of its economic and social programme.

576. Lastly, the complainant indicates that, in the case of collective agreements of public employees or officials, in addition to the procedures and powers of control granted to the Public Prosecutor's Office and CORDIPLAN, the Council of Ministers may, under section 527 of the Organic Labour Act, intervene in turn by approving or withholding approval from the scope of agreements with a financial impact if they commit public funds for more than two periods or years, which means in practice that all collective agreements have to be submitted to this body of the Executive, since under the labour legislation agreements shall be valid for not more than three and not less than two years.

577. In a communication dated 27 April 1999, the complainant provides a summary of the administrative steps taken since 1994 with a view to negotiating a collective agreement and of the obstacles it has encountered along the way, culminating in the administrative decision of September 1998 referred to in the communication containing the complaint, which ordered the termination of the bargaining process between the trade union and the IVIC. Lastly, the complainant states that it has lodged an administrative appeal against this decision but that no decision has been handed down by the administrative authority six months after this action was initiated.

B. The Government's reply

578. In its communication of 19 October 1999, the Government indicates that, under section 519 of the Organic Labour Act, Venezuelan labour jurisprudence provides the possibility for the parties concerned in the collective bargaining process to put forward, at one single and specific moment -- the first meeting officially convoked by the labour officer -- the allegations and defence which it considers appropriate to propose to exclude itself from negotiating the given draft collective agreement. It is for the labour inspector to decide on the merits of these arguments. The creation and recognition of this distinct route relates to whether it is a question of collective contracts in public sector enterprises or whether they are in the private sector. Far from signifying a discrimination or a violation of the voluntary character and free negotiation of collective agreements, it is rather a matter of guaranteeing and procuring the conclusion and subsequent signing of the collective agreement by the State in a conscious and responsible manner. Any other approach would certainly amount to a disrespect for, and even an impairment of the rights of workers wishing to establish their working conditions, or even to modify existing agreements, through a legal instrument of a contractual nature (collective agreements), where prior verification of draft collective agreements is necessary and should be done by the Central Coordination and Planning Bureau of the Office of the President (now the Minister of Planning and Development) in order to determine the technical and financial resources within the National Executive for ensuring this agreement, before the definitive signing.

579. In respect of the allegation concerning Administrative Decision No. 021 of 30 September 1998 issued by the Directorate of the National Inspectorate and Collective Labour Affairs, the Government indicates that this request had been dealt with in the correct channels in accordance with Venezuelan jurisprudence; it concerns an administrative act and as such may be handled either administratively or through the courts and in either case the requirements of the Act are fulfilled. The Government adds that Venezuelan jurisprudence effectively provides under section 519 of the Organic Labour Act for the possibility of verifying any eventual opposition to the commencement of discussions on a draft collective agreement. In the present case, it follows from what was expressed by the complainant that the employer's representation (IVIC) opposed in a timely fashion the initiation of discussions concerning the draft presented by the SEPIVIC union.

580. The Government indicates that, at the same time -- the first conciliation meeting -- the Public Prosecutor urged the parties to the discussion and negotiation of the draft collective agreement to leave aside the discussions concerning any clauses of an economic nature; these would be finally approved by the Central Coordination and Planning Bureau of the Office of the President (now the Minister of Planning and Development). This declaration, according to the complainant, signifies submitting the contents of the negotiations to previously and unilaterally determined parameters, thus conditioning the validity and force of the agreements which had been arrived at by the parties. According to the Government, Venezuelan jurisprudence in force at the time of the negotiation of the draft of the collective agreement in question provides for a distinct treatment of proposals to establish working conditions for officials or employees in the National Public Administration.

581. The Government indicates that Presidential Instruction No. 6 on Collective Bargaining in the Public Sector recognizes the impossibility for the employer representation to sign a negotiated contract given their lack of knowledge of the economic and technical report of the Central Coordination and Planning Bureau of the Office of the President, as well as for not having pointed out that the new economic agreement should not exceed the limits provided by the National Executive (section 7). The Partial Regulations of the Organic Labour Act (Decree No. 1599) for its part provides that in the case where the Central Coordination and Planning Bureau of the Office of the President determines that the proposed agreement exceeds the technical and financial limits set forth by the Executive, it should be returned to the parties so that they might make the necessary adjustments.

582. The Government points out that the declaration of the Public Prosecutor according to which the parties should be able to discuss the presented draft with the exception of those clauses with economic consequences which should be approved by the Central Coordination and Planning Bureau of the Office of the President is logical; such a declaration does not signify a violation of the free and voluntary nature of negotiations but rather signals out the difference in the procedure for finalizing collective agreements in the public sector. The case being examined concerns an autonomous institution which given its special nature remains governed by the principles of budgetary controls which need to be established by the National Executive. This would be a different case if it were a question of a private enterprise which had the status of employer where the finalization of collective agreements solely and exclusively depends upon the employer's own situation, without the need to submit the approximate cost of a draft agreement for the approval of any entity; that would be a decision which could be determined in its own internal sphere of the private economic unit and thus would not be subject to principles of budgetary availability.

583. The Government indicates that the new legal provision (the Regulations of the Organic Labour Act of January 1999) sets forth in Title III, Chapter III, Third Section, sections 182-192, provides for one single procedure for collective bargaining, with certain peculiarities for, on the one hand, the National Public Centralized Administration which are the same for the autonomous institutions, foundations, associations and state enterprises and, on the other, the collective agreements which devolve from state governments and municipalities. It shall be noted that in both cases it is essential to take into account the technical and financial criteria, in the first case set by the President and the Council of Ministers and, in the second case, set by the Governor and Mayor. It shall also be pointed out that, in section 188:

Thus, all drafts of collective bargaining in the public sector will be covered by such regulations wherein fulfilment of respect for the abovementioned technical report is compulsory in order to be able to sign a new collective agreement. Nevertheless, section 266 provides that the collective bargaining process under way in the public sector at the time of the entry into force of these regulations will be covered by the Partial Regulations of the Organic Labour Act for Negotiating Collective Agreements of Officials and Employees in the National Public Administration or the abovementioned Presidential Instruction No. 6.

584. In respect of the allegation concerning the non-fulfilment by the Government of the obligation to promote and encourage the exercise of free and voluntary collective bargaining "by ordering through the Directorate of the National Inspectorate and Collective Labour Affairs and by means of Administrative Order No. 021, the termination of the collective bargaining process" and that the administrative authority in pronouncing itself with respect to this order simply limited itself to considering the arguments put forward by the enterprise and by the other bodies concerned (Public Prosecutor and CORDIPLAN), the Government states that, in conformity with section 519 of the Organic Labour Act, the labour inspector shall decide upon the arguments and allegations put forth by the employer representation for exclusion from discussing the proposed draft, by means of an administrative act (in the present case by Administrative Order), and any of the parties which considers that its rights have been violated by the decision taken by the labour official may, in accordance with the Act, appeal this decision.

585. The Government points out that it would have hoped that the complainant would have put the legal machinery into motion in order to assure the balance between the subjects concerned in the negotiation process, in particular through an appeal of this administrative decision.

C. The Committee's conclusions

586. The Committee observes that in this case the complainant alleges obstruction of the procedure for the negotiation of a collective agreement with the Venezuelan Scientific Research Institute (IVIC). Specifically, the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) alleges the following: (1) the lengthy and complicated procedure of collective bargaining for public servants and the submission to different bodies of definitive collective agreements already concluded, with the possibility that they may be amended, with the signing of the collective agreement being prohibited until then and the need for final approval by authorities other than the employer; (2) the lack of good faith on the part of IVIC in refusing to negotiate clauses of a collective agreement that do not have a financial impact; (3) failure of the Directorate of the National Inspectorate and Collective Labour Affairs to take account of the arguments put forward by the complainant in its decision of September 1998 (Administrative Decision No. 021) to settle the dispute between the SEPIVIC and the IVIC, ordering termination of the bargaining process; and (4) the delay in handing down a decision on the appeal lodged by the SEPIVIC against an administrative decision ordering termination of the bargaining process between the trade union and the IVIC.

587. As regards the alleged slow and complicated procedure governing collective bargaining of public servants and submission to different bodies of definitive collective agreements already concluded, with the possibility that they may be amended, it being prohibited until then to sign the collective agreement, and the need for final approval by authorities other than the employer, the Committee observes that sections 8 to 17 of the partial regulations issued under the Organic Labour Act for the negotiation of collective agreements of officials or employees of the national public administration (Decree No. 1599 of 1991) which applies in this case provide as follows:

588. The Committee observes that this procedure which applies, may be followed by a further administrative procedure before the Council of Ministers, since the second paragraph of section 527 of the Organic Labour Act provides that: "Collective agreements involving payments in budgetary periods beyond the one in progress must be approved by the Council of Ministers" (according to the complainant all collective agreements must be submitted to this body, since the legislation provides that they shall be valid for not more than three and not less than two years).

589. In this context, the Committee notes that the administrative procedure for negotiating a collective agreement in the public administration (covered by the partial regulations of 1991 under the Organic Labour Act for negotiating collective agreements for officials or employees of the national public administration) may be extremely lengthy -- in this case the complainant alleges that nine months elapsed before the parties were able to begin negotiating -- and that the definitive agreement reached between the parties must be approved by one or two bodies, depending on the case (the Public Prosecutor of the Republic and possibly also the Council of Ministers).

590. While the Committee is aware of the particular problems arising in collective bargaining in the public administration (for example, remuneration and other conditions of employment of public servants which involve a financial cost need to be reflected in public budgets subject to approval by bodies that are not always the employers of the public employees and whose decisions need to take account of the economic situation of the country and the public interest), it recalls that when examining allegations on this subject it has considered that, in so far as the income of public enterprises and bodies depends on state budgets, it would not be objectionable -- after wide discussion and consultation between the concerned employers' and employees' organizations in a system having the confidence of the parties -- for wage ceilings to be fixed in state budgetary laws [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 896]. Moreover, the Committee has considered that it is acceptable that in the bargaining process the employer side representing the public administration seek the opinion of the Ministry of Finances or an economic and financial body that verifies the financial impact of draft collective agreements [see 306th Report of the Committee, Case No. 1878 (Peru), para. 537], provided that "trade union organizations and the employers and their associations were consulted and could express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements" [see Digest, op. cit., para. 897].

591. Nevertheless, the Committee notes the Government's indication that the new Regulations under the Organic Labour Act of 20 January 1999 (issued after the presentation of this complaint) regulate collective bargaining in the public sector. In these circumstances, the Committee invites the complainant to formulate its comments in this respect.

592. As regards the allegation concerning the IVIC's lack of good faith in refusing to negotiate certain clauses of a collective agreement from the moment that the Public Prosecutor of the Republic excluded the clauses with an economic impact, the Committee regrets to note that the Government has not communicated its observations on this matter. In this regard 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" [see Digest, op. cit., para. 815]. In these circumstances, the Committee requests the Government to endeavour to promote the negotiation of a collective agreement between the Trade Union of Public Employees of the Venezuelan Scientific Research Institute (SEPIVIC) and the Venezuelan Scientific Research Institute (IVIC) and to keep it informed in this regard.

593. As regards the allegation concerning the failure of the Directorate of the National Inspectorate and Collective Labour Affairs to take account of the arguments put forward by the SEPIVIC in its decision of September 1998 ordering termination of the bargaining process (Administrative Decision No. 021), the Committee notes the Government's statement that, in conformity with the Organic Labour Act, any of the parties which considers that its rights have been violated by the administrative decision may make an appeal. The Committee observes that the complainant indicates that it has appealed this administrative decision and that it emphasizes the delay in issuing a ruling on the appeal lodged by the SEPIVIC against the abovementioned decision. In this respect, the Committee deplores the time that has elapsed without a decision being issued on the matter and trusts that the authorities will hand down a ruling on the appeal in the very near future. The Committee requests the Government to keep it informed of the final decision taken by the administrative authorities in this respect.

594. Lastly, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

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

Case No. 1976

Interim report

Complaint against the Government of Zambia
presented by
the Zambia Congress of Trade Unions (ZCTU)

Allegations: Wage freeze in the public service; failure
by local authorities to pay wages

596. In a communication dated 17 July 1998, the Congress of Trade Unions (ZCTU) presented a complaint of violations of freedom of association against the Government of Zambia.

597. The Government furnished its observations in a communication of May 1999.

598. Zambia 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

599. In its complaint dated 17 July 1998, the ZCTU asserts that the Government imposed a wage freeze on all workers in the Zambian public service and in government-aided institutions for the whole of 1998. In addition, there was a failure by local authorities to pay salaries/wages to workers for periods ranging from two to 19 months.

600. More specifically, the ZCTU alleges that in late November 1997, the Government, through the Ministry of Labour and Social Security, announced that there would be a wage freeze for all workers in the public service and all workers in all government-aided institutions for the whole of 1998. The wage freeze was imposed without consulting the workers involved through their trade unions or the ZCTU. A meeting of the Tripartite Consultative Labour Council was held in September 1997 during which no mention was made about the impending wage freeze. The ZCTU points out that efforts by the trade unions to engage the Government in effective dialogue on the matter have failed as the Government has refused to meet and discuss the matter with the ZCTU. The ZCTU explains that the wage freeze has affected all workers in the public service and in all government-aided institutions like hospitals, universities, etc. The total number of affected workers who have suffered untold hardships is well over 150,000 and this translates into more than 600,000 persons when families and dependants of workers are taken into account. The ZCTU contends that the imposition by the Government of the wage freeze is a violation of ILO Conventions Nos. 98, 144 and 151, all of which have been ratified by Zambia.

601. The ZCTU then asserts that since 1992, the Government has failed to pay workers in most local authorities for periods varying between two and 19 months causing the workers, their families and dependants to become destitutes and beggars. Those workers who have tried to protest against this state of affairs have been disciplined including being dismissed from employment. The situation is chaotic and deplorable. According to the ZCTU, close to 10,000 workers are victims of this government failure. When families and other dependants are included, close to 100,000 people are affected by the Government's actions.

602. The ZCTU concludes by stressing that this violation of international labour standards and trade union rights is continuing unabated and without a solution in sight. Many meetings have been held with government authorities including the Ministry of Labour and Social Security without any positive results.

B. The Government's reply

603. In its reply of May 1999, the Government refers to the ZCTU's allegations that its efforts and those of its affiliates operating in the public service to engage the Government in effective dialogue on the matter were unsuccessful and that the imposition of a wage freeze was a violation of ILO Conventions Nos. 98, 144 and 151, all ratified by Zambia.

604. First of all, the Government points out that it is committed to promoting collective bargaining in all sectors of the economy. This commitment is illustrated through the enactment of the Industrial and Labour Relations Act in 1993 as amended by Act No. 30 of 1997, in particular parts VII and VIII thereof designed to promote collective bargaining. The Government explains that the action taken to install a wage freeze was not a negation of the principle of collective bargaining. The action was a temporary measure to facilitate the implementation of the public service reform programme. The Government has embarked on a public service reform programme with the objective of achieving efficiency and cost effectiveness in the delivery of quality service to the people of Zambia by creating a small, well-remunerated and motivated public service.

605. According to the Government, one of the important components of the reform programme is the restructuring of the public service with a view to facilitating the realization of the above objective. The programme focuses, among others, on (a) reduction of the number of employees in the public service from 136,000 to 80,000 civil servants and from 28,000 to 13,500 classified employees, through staff recruitment freeze, redundancies and voluntary separation; (b) restructuring of ministries, provinces and other government institutions; (c) implementing an effective establishment and pay control system; (d) a wage freeze for all public service staff during the period 1 January 1998 to 31 December 1998; and (e) an increase in the wages and salaries of the remaining public service workers to levels comparable to those in the private sector.

606. The Government stresses that the Civil Servants' Union of Zambia and the National Union of Public Service Workers which cater for public service employees are intimately involved in the implementation of the reform programme and were fully informed of the need to restrain wages in 1998 as part of the reform programme. The Government further stresses that, in spite of the wage freeze, collective bargaining in the public service continued. The two trade unions undertook bargaining with the Government. The negotiations were however deadlocked and the matter proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures. As a measure of good faith and sincerity on the part of the Government, in September 1998 the Government announced that the wage freeze would come to a close at the end of December 1998 and invited trade unions operating in the public service to immediately commence negotiations on wages and salaries for implementation in 1999. The Government does not therefore view its action as a negation of collective bargaining.

607. As regards the alleged violation of Convention No. 98, the Government points out that it has put in place legal provisions in the Industrial and Labour Relations Act designed to promote trade unionism and collective bargaining with a view to regulate terms and conditions of employment by means of collective agreements. These measures are provided in sections 5, 63, 65, 69 and 70-73 of the Act. It should be noted from section 69 of the Act that the onus to commence negotiations for the purpose of concluding a collective agreement is placed on the bargaining unit comprising the management of an undertaking and the trade union representing the employees thereof. In this particular case, the Government and the Civil Servants' Union of Zambia/National Union of Public Service Workers commenced negotiations but an agreement was not reached because the Government was not in a position to make any monetary concessions on certain terms and conditions of employment for the reasons previously advanced. The resulting dispute is currently in the Industrial Relations Court.

608. With regard to the alleged violation of Convention No. 144 concerning tripartite consultations, the Government asserts that it is committed to the promotion of tripartite consultation in the field of labour and employment. In this regard provisions exist in part X of the Industrial and Labour Relations Act, as amended by Act No. 30 of 1997, establishing the Tripartite Consultative Labour Council. Since the establishment of the council, the ZCTU has participated in the council meetings effectively. However, it is the view of the Government that there is a distinction between tripartite consultations and collective bargaining. Whereas tripartite consultations result in a consensus of approach and application of policy issues on labour and employment, collective bargaining on the other hand produces binding agreements on the parties concerned who are usually two. According to the Government therefore, negotiable matters on terms and conditions of employment cannot be subjected to tripartite consultations as these are best resolved by parties to the negotiation process and, in the event of disagreement, the national procedures for the settlement of disputes are invoked. This is actually what happened in the situation at hand.

609. Regarding the allegation that there was an infringement of Convention No. 151, the Government emphasizes that public service workers like all other workers in the private and parastatal undertakings enjoy freedom of association, the right to organize and collective bargaining. This is illustrated by the Civil Servants' Union of Zambia and the National Union of Public Service Workers declaring a dispute with the Government of Zambia over failure to agree on terms and conditions of employment. This dispute then proceeded to conciliation and thereafter to arbitration in the Industrial Relations Court whose decision is awaited. Furthermore, and in the Government's view, a disagreement in the process of negotiations cannot be defined as a negation of the provisions of this Convention. It would have been a reasonable allegation had the Government deliberately and without any justified reason refused to meet the public service workers' organizations, but in this case meetings and negotiations were held which resulted in a deadlock. The allegation therefore is not justified given the facts and circumstances of the issue at hand.

610. Finally, turning to the allegation that the Government failed to pay workers in most local authorities for periods ranging between two and 19 months, and that when these workers complained, they were threatened with dismissal, the Government points out that workers in the local authorities are not employed by the Government of the Republic of Zambia. They are employed by individual district local councils. Local councils manage their own operations including recruiting workers, taking disciplinary action and paying wages and salaries without interference from the Government. Therefore, the responsibility of payment of wages and salaries is on each individual local council and not the Government. The Government concludes by pointing out that the Zambia United Local Authorities Workers' Union has taken some of these local councils to courts of law in an effort to secure payment of outstanding salaries quickly.

C. The Committee's conclusions

611. The Committee notes that the allegations in this case concern the imposition of a wage freeze in the public service prior to which no consultations were held with the unions concerned, as well as the failure to pay wages to workers in certain local authorities.

612. The complainant (ZCTU) contends that the wage freeze was imposed for the whole of 1998 without consulting the workers involved through their trade unions or the ZCTU. The Government maintains that it is committed to the promotion of tripartite consultations in the field of labour and employment and that the ZCTU has participated fully in the meetings of the Tripartite Consultative Labour Council since its establishment. The Committee notes nevertheless that the Government does not refute the ZCTU's allegation that no mention was made about the impending wage freeze during a meeting of the Tripartite Consultative Labour Council held in September 1997. The Committee further observes the Government's statement that the Civil Servants' Union of Zambia and the National Union of Public Service Workers were fully informed of the need to restrain wages in 1998 as part of the public service reform programme. In the Committee's view, this would appear to somewhat confirm the ZCTU's assertion that in late November 1997, the Government, through the Ministry of Labour and Social Security, announced that there would be a wage freeze for all workers in the public service and in government-aided institutions for the whole of 1998 without consulting the workers involved through their trade unions or the ZCTU. Moreover, although the Government indicates that it had commenced negotiations with the public service unions but that these negotiations were deadlocked and the matter proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures, the Committee notes that these negotiations were initiated -- while the wage freeze was ongoing in 1998 -- to settle the terms and conditions of employment of public service workers for 1999.

613. In these circumstances, the Committee is bound to conclude that no negotiations or consultations were in effect held between the Government and the trade unions concerned prior to the Government's decision to impose a wage freeze for all workers in the public service and in government-aided institutions for 1998. In this respect, the Committee would stress that, where a government seeks to alter bargaining structures in which it acts actually or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned, in keeping with the principles established in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). Such consultations imply, in particular, that they be undertaken in good faith and that both partners have all the information necessary to make an informed decision [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 856 and 941]. The Committee expects that in future the Government will follow an adequate consultation procedure when it seeks to alter bargaining structures in which it acts actually or indirectly as employer.

614. With regard to the compatibility of the wage restraint measure itself with collective bargaining principles, the Committee has acknowledged that where, for compelling reasons of national economic interest and as part of its stabilization policy, a government considers that it is not possible for wage rates to be fixed freely through collective bargaining, any restrictions should be imposed as a exceptional measure and only to the extent that is necessary without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers' living standards. [Digest, op. cit., para. 883.] The Committee of Experts has adopted a similar approach on this issue [General Survey on freedom of association and collective bargaining, 1994, para. 260].

615. As regards the particulars of this case, the Committee notes that the wage freeze was one of several measures which, according to the Government, it had taken to facilitate the implementation of a public service reform programme. The Committee further notes that the wage freeze was imposed for a 12-month period pursuant to which collective bargaining resumed in the public service, even if negotiations were subsequently deadlocked and the resulting dispute proceeded to conciliation and ultimately to the Industrial Relations Court in terms of the dispute settlement procedures provided for in the Industrial and Labour Relations Act. Hence, in the Committee's view, the wage freeze appears to be an exceptional measure which was temporary in nature. However, the Committee notes that this wage freeze was not accompanied by adequate safeguards to protect workers' living standards, especially those with a low income. In effect, the ZCTU alleges that a sizeable number of persons have suffered untold hardships as a result of this wage freeze. The Government does not contest this argument but points out that this measure, amongst others, was necessary in the context of the public service reform programme.

616. In view of the foregoing, the Committee regrets that the Government did not give priority to collective bargaining as a means of determining the employment conditions of its public servants, but rather that it felt compelled to unilaterally, without consulting the trade unions concerned, freeze public service wages. The Committee notes, however, that the wage restraint measure was limited to a 12-month period, and that free collective bargaining resumed thereafter. The Committee trusts that the Government will refrain from taking such measures in the future. Furthermore, in the absence of adequate information from the Government on compelling reasons for adopting this wage freeze, the Committee requests it to provide information in this regard.

617. With regard to the allegation that the Government failed to pay workers in most local authorities for periods ranging from two to 19 months, the Committee would recall that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest, op. cit., para. 6]. In the concrete case at hand, inasmuch as all the workers employed by the local authorities concerned were not paid their wages, the Committee considers that the issue before it, serious as it may be, does not pertain to the freedom of association Conventions but rather the Protection of Wages Convention, 1949 (No. 95), ratified by Zambia in 1979. The Committee therefore concludes that this aspect of the case does not call for further examination.

The Committee's recommendations

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

Geneva, 12 November 1999.

Points for decision:

1. "The armed services shall, under the directions of the federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so."