Freedom of Association remains elusive in much of East and South-East Asia

BANGKOK (ILO News) - Although some progress has been achieved in recent months, freedom of association - the right of workers and of employers to associate freely, without prior authorization - remains elusive in much of East and South-East Asia, according to the Geneva-based International Labour Office (ILO).

Of twelve countries ^{(Endnote 1)} in the region, only four - Indonesia (in 1998), Japan (1965), Myanmar (1955) and the Philippines (1953) - have ratified ILO Convention No. 87 on "Freedom of Association and Protection of the Right to Organize" the instrument which formalizes the principle in international law. Worldwide, 122 of the ILO's 174 member States have ratified Convention No. 87 ^{(Endnote 2)} . Ratification alone means little however where democracy and the rule of law are denied, as in Myanmar today.

"Freedom to associate with those of one's own choosing is a fundamental human right, nowhere more valued than where it is denied", says ILO Director-General Michel Hansenne. "It is essential to the building of more democratic, participatory and equitable patterns of development in all regions of the world. Without the right to associate, whether exercised or not, the prospects for achieving social justice are poor or non-existent".

The severe economic and social crisis still unfolding in Asia has focussed attention on the need for a genuine social dialogue and led the authorities in several countries to reconsider past positions. The single most dramatic example of this trend was the ratification by Indonesia of Convention No. 87, on 5 June 1998, following years of systematic repression. ILO seminars have been organized in Cambodia, China and Malaysia to discuss the legal and practical implications of adherence to Conventions Nos. 87 and 98 while the Lao P.D.R. has asked for and received advice on the compatibility of its labour laws with freedom of association principles.

"If democracy is about the participation of people in how decisions are made, then Convention No. 87 is more relevant than ever as it affects people's rights to express their views, form organizations, and be free from interference", notes Mr. William Simpson, Director of the ILO's East Asia Multidisciplinary Team. "This is especially crucial in a region filled with illustrations of what can go wrong when the right to freedom of association goes unheeded".

Adopted 50 years ago, in 1948, Convention No. 87 ^{(Endnote 3)} is backed up by a potent supervisory mechanism. A Committee composed of 20 independent experts meets once a year in Geneva to monitor and issue a public report on the application of Conventions - notably Convention No. 87 - in all countries which have ratified them. In addition, the ILO Committee on Freedom of Association - composed of workers', employers' and government delegates - meets three times a year to examine complaints submitted by workers' organizations as well, more rarely, as by employers' organizations and by Governments.

The distinguishing characteristic of the Committee on Freedom of Association is that, drawing its authority from the ILO Constitution itself, it is competent to examine complaints whether or not the country concerned has ratified the relevant Freedom of Association Conventions. This is a unique feature for which there exists no parallel in international law. Alleged infringements concern, among others, instances of anti-union discrimination, violations of human rights and basic civil liberties, refusal to engage in collective bargaining, denial of the right to strike and interference by employers in trade union organizing, elections and activities.

Since it was established, in 1951, the Committee has examined nearly 2,000 complaints. It is perhaps best known for its tireless pursuit of information concerning trade unionists who have been murdered, imprisoned or who have "disappeared".

The information provided on the countries below offers only a partial reflection of the trade union rights situation in each one of them. Examination by the ILO of any given situation is limited to the information made available to it by its tripartite - workers, employers, governments - constituents. It should also be noted that the very nature of a supervisory mechanism and complaints procedure will often lead to an observation of a violation of the rights in question. This fact should in no way prejudice the recognition of the significant advances recently made in the region in the field of trade union rights.

Cambodia ^{(Endnote 4)}

Cambodia, a Member of the ILO since 1969, has ratified neither Convention No. 87 nor Convention No. 98. The Government has stated that it respects the principles contained therein.

The legal situation

• The Constitution guarantees citizens the right to establish and belong to trade unions.
• A Labour Code, promulgated in March 1997, establishes the criteria for the registration, organisation and operation of trade unions.
• The Free Trade Union of Workers of the Kingdom of Cambodia (FTUWKC) was established in December 1996 (three months after the promulgation of the Labour Code) and, according to its President: "defends the rights and freedoms of workers" and "amongst other things, requests an increase in wages, a cut in the number of weekly working hours, benefits in the event of sickness or pregnancy and some control over dismissals".

Economic and social context

The Government's efforts to develop the economy have encouraged an increasing number of foreign investors to establish their enterprises in Cambodia, particularly those in the clothing and textile industries where the conditions of work are particularly difficult.

The Government has adopted a policy of "trying to attract foreign investments to solve the problems of unemployment and to develop the national economy. The clothing industry is developing rapidly and absorbing much of the labour force, particularly women".

The World Confederation of Labour, which submitted a complaint to the ILO Committee on Freedom of Association in July 1997, denounced excessive working hours, starvation wages, the lack of protection in the event of sickness or pregnancy and arbitrary dismissals. The Confederation adds that workers are subjected to brutal and humiliating treatment. Moreover, the Confederation alleges that the Government has violated the right to establish trade unions, the right to strike and the right to collective bargaining. Members of trade unions have in addition been dismissed from their jobs or subjected to pressure and threats.

The Government itself has recognized that "according to reports drafted by various groups of the labour inspectorate, (...) there has been a general violation of working conditions" and explains that "labour legislation is a recent phenomenon in Cambodia, that knowledge of the laws, experience and practice in this area are as yet inadequate and that the number of labour officials and the means available to them have not kept pace with the rapid developments in the economy and the world of work".

Conflicts, strikes and controversy

In December 1996 and January 1997, FTUWKC organized three strikes, the first to be held in the modern history of Cambodia, in the factories of the Cambodia Garment Ltd., Gennon Manufacturing and Tack Fat Garment to protest against conditions of work.

The Government denies that excessive force was used against strikers and emphasizes that the labour inspectorate was acting in accordance with the provisions laid down in the Labour Code.

In November 1998, the Committee on Freedom of Association requested the Government: 1) to ensure that FTUWKC is registered without delay, in accordance with the provisions of the Labour Code, 2) to indicate whether negotiations had actually taken place between FTUWKC and the employers in the clothing industry, and 3) to provide adequate protection against anti-union discrimination through legislation. The Committee also requested that the situation of trade union members who were dismissed from the Tack Fat Garment and Samhan Fabrics Ltd. be reviewed so that they may be reinstated in their jobs if it is found that they were dismissed for the exercise of legitimate trade union activities.

China ^{(Endnote 5)}

China has been a Member of the ILO since 1919. It has ratified neither the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) nor the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

Under the provisions of the 1992 Trade Union Act, the only trade unions which the Government recognizes as legitimate are those affiliated to the All-China Federation of Trade Unions (ACFTU). The Constitution and rules of the ACFTU (revised in 1993), define trade unions as "the link and bridge between the Chinese Communist Party and the working masses" and in his speech of 30 October 1993, the President of the ACFTU declared that: "trade unions are organizations under the leadership of the Party. Unions, at all levels, should study and be aware of the demands and wishes of the Party's Central Committee and should accept the leadership of the Party on our initiatives".

The International Confederation of Free Trade Unions (ICFTU) - an international trade union secretariat with consultative status at the ILO - which has submitted several complaints to the Committee on Freedom of Association of the ILO Governing Body, claims that the Government of China prohibits independent trade unions and imprisons their leaders.

Following examination of these complaints, the Committee on Freedom of Association concluded that the imposition of a "trade union monopoly" prevents "the establishment of trade union organizations that are independent of the public authorities and of the ruling party, and whose mission should be to defend and promote the interests of the constituents and not to reinforce the country's political and economic system". The 1992 Trade Union Act, which imposes a "trade union monopoly" and hinders "the right of trade unions to draw up their constitution, to formulate their programmes and to organize their activities, is contrary to the principles of freedom of association".

Although the Labour Code, which came into force in January 1995, standardizes employment principles and requirements in all types of enterprises, the ICFTU notes that over 150 million agricultural and industrial workers are excluded from its scope. Under the Labour Code, all collective agreements must be approved by the local government and the negotiation of pay increases, beyond the level of the increase of the cost of living, is prohibited.

The 1982 Constitution no longer recognized the right to strike and the Labour Code, whilst providing for a system of arbitration and mediation, neither protects this right nor allows recourse to strike action.

The National Security Law and the Regulations on Re-education through Labour are invoked to justify the arrest of trade union activists who attempt to organize independent trade union activities. Generally, the threat to state security has been used to suppress the independent trade union movement.

In general terms, the Government's position is contained in the following statement, which was communicated to the Committee: "normal trade union activity should be carried out within the legal framework fixed by the State with the singular goal of defending workers' legitimate rights and interests. Anyone, whether worker or member of a workers' organization, should be sanctioned and subdued for committing crimes of pillage, "hooliganism", disturbance of the social order and conspiracy against the Government".

The examples below highlight the obstacles faced by independent trade unions in the exercise of their activities.

Nine trade union leaders and activists were arrested and sentenced for their role in the Workers Autonomous Federations (WAF), which was established during the May-June 1989 movement for democracy.

Three of the activists, Tang Yuanjuan, Leng Wanbao and Li Wei, have been subjected to ill-treatment on a number of occasions by prison guards.

Tang contracted pulmonary tuberculosis and hepatitis in prison and has been refused medical parole despite the serious deterioration in his health. Although the prison sentences of all three have been reduced on appeal and Leng Wanbao has been released on medical grounds, Tang and Li are thought to be still in prison, serving sentences of eight years each.

Wang Miaogen, the President of the WAF, was subjected to police brutality on several occasions following his release from prison for his continued advocacy of independent trade unions and in April 1993 was forcibly committed to a psychiatric institution.

The Committee considered that the information communicated by the Government does not establish, in sufficient detail, that the heavy sentences against these individuals were not tied to their activities as trade unionists. The Committee therefore requested the Government to release Tang Yuanjuan and Li Wei and to take the necessary measures for an independent inquiry concerning alleged acts of ill-treatment against Tang Yuanjuan, Leng Wanbao and Li Wei during their detention.

Zhou Guoqiang, legal adviser to the Beijing Acoustical Equipment Company, was arrested before the events which took place in June 1989 and spent eight months in prison for his involvement with the Beijing WAF. He subsequently became legal adviser and counsel to the Beijing WAF leader, Han Dongfang, when Han himself was imprisoned from 1989 to 1992. In September 1994, Zhou was again arrested and sentenced to three years of re-education through labour for printing and attempting to distribute T-shirts bearing slogans which, the ICFTU assert, simply called for the respect of internationally recognized trade union rights. His prison sentence has been arbitrarily extended on two occasions, the first for an alleged escape attempt and the second when points for "ideological training" were deducted from his prison record. Two appeals for his release from prison have been turned down. Zhou Guoqiang is imprisoned in the Shuang He forced labour camp located in a remote region which can only be reached with extreme difficulty by Zhou's wife and lawyer. Zhou is consistently denied medical treatment and access to doctors by the authorities, despite having contracted tuberculosis in prison. He is denied the right to send and receive mail, to religious practice, to home-leave and access to visiting facilities on the occasions when his family are allowed to visit. His wife has been repeatedly arrested and subjected to police brutality for protesting against her husband's imprisonment.

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

Liu Nianchun, who was the spokesperson for the League for the Protection of the Rights of Working People, was arrested with several colleagues in March 1994. He was imprisoned for five months in an unknown place, released and subsequently rearrested in 1995 and sentenced, by administrative decision, to three years of re-education through labour. An appeal filed in July 1996 was rejected. The authorities refused for over a year to give the reasons for Liu's arrest or reveal where he was imprisoned. When Liu's wife was finally able to visit him, she found that her husband shares a 20 square metre cell with 15 other prisoners. Liu's ill-health prevents him from fulfilling the work quotas set by the prison authorities, as a consequence of which his sentence was arbitrarily extended by six months in March 1998 for his "poor attitude". His wife has been denied visiting rights and he is prohibited from corresponding with his family. It has been alleged that he has been tortured with electric shock treatment and deprived of water for starting a hunger strike. The ILO considers that the conditions under which Liu Nianchun is detained are life threatening.

The Government has stated that Liu had been sentenced to a prison term of three years of education through labour for disturbing the social order and accepting financing from organizations hostile to China.

The Committee has concluded that Liu was, in fact, detained for trade union activities and requested the Government to take "the necessary measures for the immediate release of Liu Nianchun and to provide him with the necessary medical treatment". The Committee "further calls on the Government to establish an independent investigation into the serious allegations of torture and ill-treatment inflicted on Liu Nianchun in order to determine and punish those responsible".

Suppression of independent workers' organizations

The ICFTU points out that since the suppression of the movement for democracy in June 1989, the authorities continue to arrest, arbitrarily detain and sentence a large number of workers who attempt to establish and/or join organizations of their own choosing and it is generally when these groups of workers attempt to register their organizations that they become victims of repression.

This was the case of the League for the Protection of Working People's Rights, disbanded in 1994, and the Shenzhen-based Workers' Forum, whose members attempted to advise and assist migrant workers in the Special Economic Zone of Shenzhen on the establishment of independent trade unions.

The Government states that "these organizations are not, in fact trade unions, but rather groups of individuals who, instead of defending workers' interests, are devoted to illegal activities endangering state security. The prohibition of such groups, therefore, ensures a better defence of workers' fundamental interests."

Liu Jingsheng, a worker in the chemical industry was arrested in 1992 for establishing the Free Labour Union of China (FLUC). In 1994, Liu Jingsheng was sentenced to a prison term of 15 years and deprived of his political rights for a period of 4 years. 15 other trade union activists were also sentenced to prison terms ranging from two to 20 years. All appeals have been rejected.

Although the Government states that these individuals were sentenced for endangering state security and violating the Criminal Code, the Committee expressed its deep concern in respect of the sanctions imposed and the apparent link between the establishment of the FLUC and the sanctioning of its leaders. It therefore requested the Government to provide specific and detailed information on the charges brought against the members of the FLUC and a copy of any relevant judgements issued by the courts.

Li Wenming and Guo Baosheng were dismissed from their place of work for attempting to inform migrant workers in the Shenzhen Special Economic Zone of their rights. Li and 12 other members of the group continued with their activities, publishing a newsletter on workers' rights until they were arrested in May 1994. Li was imprisoned and held in an undisclosed location for a period of 30 months. Li and Guo were accused of "subversion endangering state security" shortly before they were due to be released and each sentenced to a further three and a half years imprisonment. Li suffers from acute kidney damage, which is extremely painful, and may lose one kidney should he not receive medical care which has been consistently denied.

The Committee has urged the Government to order the immediate release of Li Wenming and Guo Baosheng and to provide Li with the medical treatment his condition requires.

Suppression of demonstrations and strikes

The ICFTU alleges that large numbers of trade union activists have been detained for organising workers' demonstrations or strikes during the democratic movement of May 1989.

The Committee has concluded that these individuals were arrested and sentenced for participating in legitimate trade union activities and requested the Government to order their immediate release.

Two taxi drivers, Zheng Shaoqing and Chen Rongyan, were sentenced by administrative decision to a prison term of two years of "re-education through labour" for organising a strike of taxi drivers in the Special Economic Zone of Zhuhai in January 1996. The strike was called to protest against the heavy fines and impounding of vehicles imposed on drivers accused of minor traffic violations. It is not known where these two taxi drivers are being held.

The Committee has requested the Government to provide detailed information in response to these allegations.

Hong Kong, China ^{(Endnote 6)}

In June 1997, China notified the International Labour Office of the continued application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) to the Hong Kong Special Administrative Region (SAR).

The legal situation

The Chinese Government declared Convention No. 87 applicable with the following modifications:

Concerning Article 3 of the Convention:

1. All officers of a trade union are required to be or have been engaged or employed in the trade, industry or occupation with which the trade union is directly concerned but this requirement may be modified at the discretion of the public authority.

2. The funds of a trade union may be expended only for objects specified in national laws or approved by the public authority.

3. Amalgamation of registered trade unions is subject to the consent of the public authority where either of the trade unions is a member of an organization established outside the territory.

4. The public authority may in certain circumstances intervene for the purpose of supervising the accounts of trade unions and ensuring the application of their rules.

Concerning Article 5 of the Convention:

1. The consent of the public authority is required for affiliation of trade unions with international organizations.

2. Federations of trade unions may be established only by registered trade unions engaged in the same trade, occupation or industry, and membership of federations of trade unions is restricted to registered trade unions engaged in the same trade, occupation or industry as the component trade unions comprising such trade union federations.

Concerning Article 6 of the Convention:

The modifications on Article 3 relating to primary trade unions apply also to federations of trade unions, except that no person who is not or has not been engaged in a trade, industry or occupation with which the primary union is directly concerned may be an officer of a federation of trade unions.

Complaint submitted

In November 1997, the Hong Kong Confederation of Trade Unions (HKCTU) submitted a complaint against the Government of China/Hong Kong (SAR) for violations of freedom of association. The complaint concerns, in particular, the repeal and/or amendment of three labour related ordinances through the enactment in October 1997 of the Employment and Labour relations (Miscellaneous Amendments) Ordinance. The Committee on Freedom of Association found a number of the provisions of this Ordinance to be in violation of the principles of freedom of association and collective bargaining and requested the Government to take the necessary steps to repeal the provisions in question and to adopt sufficient measures to ensure the protection against acts of anti-union discrimination and to lay down objective procedures for determining the representativeness of trade unions for collective bargaining purposes.

Indonesia ^{(Endnote 7)}

Indonesia has been a Member of the ILO since 1950 and ratified Conventions No. 98 and 87 in 1957 and June 1998, respectively.

The complaints referred to the ILO Committee on Freedom of Association submitted prior to the events of May 1998 concern allegations of systematic violations of trade union rights as well as "very serious allegations involving the murder, disappearance, arrest and detention of a number of trade union leaders and workers*".

Since the change in regime, the Government has engaged in reforms including:

• the ratification of Convention No. 87 (5 June 1998);
• the adoption of a Ministerial Regulation relaxing the restrictions with regard to registering trade unions;
• the release of trade union leaders and members.

In June 1998, the Tripartite delegation of Indonesia to the International Labour Conference - the ILO's supreme governing assembly, held once a year, in Geneva - included representatives from Serikat Buruh Sejahtera Indonesia (SBSI). The ILO Committee on Freedom of Association had been urging the Government for several years to register the SBSI which has now finally been granted legal personality as a trade union confederation.

Of particular significance was the release, following a long term of imprisonment, of the President of SBSI, Mr. Muchtar Pakpahan. Mr. Pakpahan, although satisfied that trade union monopoly has been abandoned in Indonesia has called for "the adoption of new labour legislation in conformity with ILO Conventions" and "above all, the effective application of the Conventions ratified by the Indonesian Government".**

The ILO's Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations consider that the legislation currently in force provides insufficient protection against anti-union discrimination and interference and imposes serious restrictions on collective bargaining.

Moreover, the Committee on Freedom of Association had called for the immediate release of a number of trade union leaders and activists who are still in detention and for the charges brought against them to be dropped. However, in August 1998, the Government announced that all trade union members detained had been released with the exception of Mrs Dita Sari. The Committee also requested that all workers who had been dismissed for participating in legitimate trade union activities should be reinstated or duly compensated, if they so wish.

Co-operation, in the form of technical assistance to bring national legislation into conformity with Conventions Nos. 87 and 98, is continuing between the Government and the ILO.

Japan ^{(Endnote 8)}

Japan has been a Member of the ILO from 1919 to 1940 and since 1951. It ratified the Convention No. 87 in 1965 and Convention No. 98 in 1953.

The issue of the denial of the right to organize of fire-fighting personnel has been the subject of dialogue between the ILO supervisory bodies and the Government of Japan for almost three decades. In 1993, the Government invited representatives of the International Labour Office to undertake a mission to the country to examine the situation and facilitate the search for solutions. The mission was received by the Government in January 1994, including by the Prime Minister himself, thus demonstrating the importance and the gravity attached by the Government to this issue. Following this mission and as a result of consultations held between the most representative trade union and the Government, a new system to guarantee the participation of fire defence personnel in the process of determining and improving their working conditions was established in 1995. When discussing this proposed system, the Committee on the Application of Standards of the International Labour Conference welcomed these developments with satisfaction as an important step towards the application of Convention No. 87 and called upon the Government to amend the law and practice so as to fully reflect this agreement in a way consistent with the Convention.

The Fire Defence Organization Law has been amended to provide that fire defence personnel committees shall be established in each fire defence headquarters in order to contribute to the effective operation of the fire service by discussing opinions proposed by fire defence personnel with regard to, inter alia, matters concerning remuneration, working hours and other working conditions and welfare of the fire defence personnel. Such committees have been established in all fire defence headquarters in Japan (as of April 1997 there were a total of 923 headquarters). In accordance with the municipal regulations, one-half of the members of the fire defence committees have been appointed by fire defence personnel and discussions concerning working conditions and other matters have begun.

While the most representative trade union which was involved in the above agreement has found this agreement largely satisfactory, it has indicated that it will continue its activities so that firefighters may have the same organizing rights as other public servants. Two other organizations representing firefighters, while recognising that the fire-defence personnel committees are a significant advance allowing the personnel to express their views, emphasize that these committees are not equivalent to giving personnel the right to organize. In their opinion, this matter will not be resolved until the Local Public Service Law has been amended to provide fire-fighting personnel with the right to organize. They add that there are a number of structural faults and problems with the fire defence personnel committees set up by the Government. These difficulties allegedly include a lack of representativeness of personnel, limitation to one meeting a year and censure on certain proposals for discussion.

Another aspect which remains unresolved concerns the broad coverage of the prohibition of the right to strike of public servants. This prohibition includes public school teachers and workers in state enterprises and, according to the representative trade union, dismissals and other sanctions due to strike action are quite common. Penal sanctions may also be applied for such strike action.

Republic of Korea ^{(Endnote 9)}

The Republic of Korea has been a Member of the ILO since 1991. It has ratified neither Convention No. 87 nor Convention No. 98.

The repression of trade union rights in the Republic of Korea is gradually being replaced by greater respect for the principle of freedom of association. Following the strikes of 1996-97, the promulgation of the Trade Union and Labour Relations Adjustment Act of March 1997 and the recommendations of the Committee on Freedom of Association, which gave rise to the visit of an ILO Tripartite Mission to the Republic of Korea, the following progress has been noted:

1. A Tripartite Committee, established on 15 January 1998, proposed reforms to bring the system of industrial relations into conformity with the principles of freedom of association. A second Committee was established, in June 1998, to oversee implementation of these reforms.

2. In February 1998, the National Assembly adopted the Tripartite Committee's proposal granting public officials the right to establish and join occupational associations, the first step towards establishing real trade unions.

Several matters which remain outstanding:

1. The Korean Confederation of Trade Unions (KCTU) is still awaiting formal registration.

2. The trade union rights of teachers are due to be recognised from 1 July 1999 and a Bill to this effect is to be submitted to Parliament in the final quarter of 1998. However, a degree of opposition from certain members of the majority in the National Assembly could delay, indeed call into question, the adoption of this important proposal. The Committee on Freedom of Association has urged the Government to ensure that these rights are recognized and to register the Korean Teachers and Educational Workers Union (CHUNKYOJO).

3. The reticence on the part of the Government to extend the right of association to all categories of public servants, in the foreseeable future.

4. Legislation respecting trade union pluralism at enterprise level will only come into force in the year 2002.

Prospects

• An Act granting amnesty to persons arrested for violating labour legislation resulted in the release of certain trade unionists. On 29 October 1998, the Government informed the Committee on Freedom of Association that the 29 trade union members detained prior to March 1998 had been released. Nevertheless, the Committee noted that 50 trade union members have since been detained following a rally on 1 May 1998. The Committee requested the immediate release of those detained for carrying out trade union activities and the rapid prosecution of those guilty of acts of violence.
• The Ministry of Justice has undertaken "to ensure a fair and rapid investigation" of the 152 remaining trade union members who have been released but remain "under investigation".

Malaysia ^{(Endnote 10)}

Malaysia ratified Convention No. 98 in 1961 but has not ratified Convention No. 87. It has been a Member of the ILO since 1957.

The single case concerning Malaysia to reach the Committee on Freedom of Association in recent years has been satisfactorily resolved.

In 1989, a complaint was received concerning the dismissal of 21 workers employed in the Harris Solid-State Sdn-Bhd (Metallurgical Industry) for engaging in trade union activities, a decision upheld by the country's Industrial Tribunal. Having followed this complaint and the appeal procedure for six years, the Committee was pleased to note that, in October 1996, the Court of Appeal ordered the reinstatement of the 21 workers and the payment of wage arrears for six years.*

One aspect of this case which remains outstanding is the early request by the Committee concerning the need to amend legislation so as to ensure that workers are free to join organizations of their own choosing. In particular, the legislation grants the Registrar the authority to refuse to register a trade union when he or she is satisfied that there exists another trade union to represent workers' interests in that particular trade, occupation or industry.** Furthermore, attempts to form a national union for the electronics sector have been unsuccessful due to restrictions under the Trade Union Act.

With regard to Convention No. 98, the Committee of Experts has been engaged in a regular dialogue with the Government in respect of certain, limited, perceived restrictions on the scope of collective bargaining.***

Myanmar ^{(Endnote 11)}

Myanmar has been a Member of the ILO since 1948 and ratified Convention No. 87 in 1955.

The ILO has for the past 40 years deplored the continued non-observance of the application of Convention No. 87 and the serious and repeated violations of basic human rights and the right to freedom of association in Myanmar.

In 1988, the Junta promulgated a Decree respecting the establishment of associations and organizations, under which a trade union, prior to its establishment, must obtain authorization from the Ministry of Interior and Religious Affairs. This has resulted in the complete lack of judicial protection in respect of freedom of association for the workers of the country and, consequently, the total impossibility of establishing organizations whose objectives are to further and defend workers' interests.

In June 1998, the International Labour Conference's Committee on the Application of Standards, declaring that it was "extremely concerned by the total lack of progress with regard to the application of the Convention", once again requested the Government to immediately "take urgent measures necessary to ensure, in law and in practice, that all workers and employers, without distinction whatsoever, have the right to join, without previous authorization, organizations of their own choosing to defend their interests and that these organizations themselves shall have the right to establish and join federations, confederations and to affiliate with international organizations, without interference from the public authorities".

Philippines ^{(Endnote 12)}

The Philippines have been a Member of the ILO since 1948 and ratified Conventions Nos. 87 and 98 in 1953.

Certain provisions of the Labour Code respecting the right to strike are currently being revised. Two points remain incompatible with the principle of freedom of association: the power of the President to intervene without restriction in strike action, and the imposition of sanctions in the event of participation in "illegal" strikes.

Outstanding cases before the Committee on Freedom of Association

Two cases brought before the ILO Committee on Freedom of Association highlight the difficulties which the public authorities are encountering in promoting the respect of trade union rights in foreign enterprises established in the Philippines.

In the town of Danao, an export processing zone, the Cebu Mitsumi Trade Union (CMEU) has been waiting since February 1994 for certification. In a complaint submitted to the ILO Committee on Freedom of Association, the Trade Union Congress of the Philippines (TUCP) stated that the enterprise's management, supported by the local authorities, had engaged in coercion initially to prevent the organization of certification elections, followed by acts of interference in these elections, held in April 1996. The town council had, in fact, decided to make Danao "a town free of trade unions and strikes". The Committee subsequently "drew the Government's attention to the principle which states that workers in export processing zones should enjoy the trade union rights provided for by the Convention".* On 31 July 1997, the Government decided to invalidate the certification elections of April 1996 and to order new elections to be held "as soon as possible".** In November 1997, the Committee therefore immediately requested the Government "to ensure that elections are held without delay in the Cebu Mitsumi enterprise, especially in view of the fact that the CMEU filed a petition for a certification election to be held nearly four years ago, in February 1994, which was moreover signed by almost all rank-and-file workers of Cebu Mitsumi".**

The second case which remains outstanding concerns the strike held on 14 September 1995 in the Temic Telefunken Microelectronics (Phils) Inc. (TEMIC) enterprise by the Telefunken Semiconductors Employees Union which resulted in the dismissal of approximately 1500 trade union leaders and strikers. Five trade union leaders were held in police detention for three days and, according to the TSEU, pickets were subjected to police brutality, a charge refuted by the Government which claims that these acts of violence were carried out by the enterprise's security guards. Ministerial Orders issued by the Government's Department of Labour and Employment and a decision handed down by the Supreme Court ordering the reinstatement of the dismissed workers have still not been implemented. The Committee, deeply regretting that more than two and a half years have elapsed since the issuing of the first Ministerial Order, pointed out that the Government "is responsible for preventing all acts of anti-union discrimination and that cases concerning anti-union discrimination should be examined rapidly".*** In addition to the immediate reinstatement of all strikers, the Committee requested the Government to ensure in future that "the authorities concerned receive appropriate instructions so that trade unionists are not arrested and detained, even if only briefly, on grounds of trade union activities".*** With regard to acts of violence against pickets, the Committee requested the Government to institute an immediate judicial inquiry and to inform it of the outcome thereof.***

Thailand ^{(Endnote 13)}

Thailand, a Member of the ILO since 1919, has ratified neither Convention No. 87 nor Convention No. 98.

In 1991, a complaint against the Government of Thailand for alleged infringements of trade union rights was brought by five international trade secretariats (the International Confederation of Free Trade Unions (ICFTU), the Public Services International (PSI), the Postal, Telegraph and Telephone International (PTTI), the International Transport Workers' Federation (ITF) and the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) on behalf of their respective Thai affiliates.* This complaint was occasioned by the enactment, in 1991, of the State Enterprise Labour Relations Act which provided, in particular, for the administrative dissolution of trade unions currently functioning in state enterprises, the limitation of one employees' association per enterprise, the devolution of trade union assets, the prohibition of affiliation to national federations, strict control over any future formation and functioning of state enterprise associations by the Interior Minister and the Registrar, the unfair and disproportionate composition of the national level State Enterprise Employee Relations Committee, and the total ban on strikes in state enterprises.

Since the Committee on Freedom of Association's recommendations to amend or repeal this Act, the Government of Thailand has been referring to efforts to adopt draft Bills to restore trade union rights for workers in state enterprises which have been thwarted by frequent Parliamentary dissolution. A 1996 version of this Bill retained a certain number of important restrictions on trade union rights.**

Most recently, a version of the bill on State Enterprise Labour Relations was finally passed by the House for enactment and would have been before the King for signature if some members of the senate had not challenged the constitutionality of its passage before the Constitutional Court.*** While the conformity of this Bill with the principles of freedom of association could not be confirmed, the Bill's passage was aborted on the basis of this procedural constitutional challenge.

Endnote 1:
Cambodia, China, Indonesia, Japan, Republic of Korea, Lao P.D.R., Malaysia, Myanmar, Philippines, Singapore, Thailand, Viet Nam.

Endnote 2:
Convention No. 98 (1949), on the Right to Organize and Collective Bargaining, has been ratified to date by 139 countries, including Indonesia (1957), Japan (1953), Malaysia (1961), Philippines (1953) and Singapore (1965).

Endnote 3:
For more information on the origins, the significance and the impact of Convention No 87, see the International Labour Review, Volume 137, Number 2 - Special Issue: Labour Rights, Human Rights. International Labour Office, Geneva, 1998. ISSN 0020-7780.

Endnote 4:
308 ^th Report of the Committee on Freedom of Association (CFA).

Endnote 5:
310 ^th Report of the CFA.

Endnote 6:
311 ^th Report of the CFA, approved by the ILO Governing Body at its November 1998 Session.

Endnote 7:
*310 ^th Report of the CFA and **Provisional Record of the International Labour Conference, No. 18 (Part Two), 86 ^th  Session, Geneva, 1998.

Endnote 8:
See Provisional Record of the International Labour Conference, 82 ^nd Session, No. 24 (Part Two), Geneva, 1995 and Report of the Committee of Experts on the Application of Conventions and Recommendations, 85 ^th Session, Report III (Part 1A), 1997.

Endnote 9:
309 ^th and 311 ^th Reports of the CFA.

Endnote 10:
See *277 ^th and 294 ^th Reports of the CFA, **281 ^st Report of the CFA and ***Report of the Committee of Experts on the Application of Conventions and Recommendations, 86 ^th Session, Report III (Part 1A), 1998.

Endnote 11:
See Provisional Record of the International Labour Conference, 86 ^th Session, No. 18 (Part Two), Geneva, 1998.

Endnote 12:
See *302 ^nd Report of the CFA; **308 ^th Report of the CFA; ***310 ^th Report of the CFA.

Endnote 13:
See *279 ^th Report of the CFA, ** 305 ^th Report of the CFA and ***311 ^th Report of the CFA.