Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951) met at the International Labour Office, Geneva on 26, 27 May and 3 June 2005, under the chairmanship of Professor Paul van der Heijden.

2. The members of Mexican, Salvadorian, Guatemalan and Venezuelan nationality were not present during the examination of the cases relating to Mexico (Case No. 2346), El Salvador (Cases Nos. 2360, 2368), Guatemala (Cases Nos. 2241, 2341) and Venezuela (Cases Nos. 2249, 2254, 2357) respectively.

3. Currently, there are 120 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 35 cases on the merits, reaching definitive conclusions in 22 cases and interim conclusions in 13 cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

Serious and urgent cases which the Committee draws to the special attention of the Governing Body

4. The Committee considers it necessary to draw the special attention of the Governing Body to Cases Nos. 1787 (Colombia), 2268 (Myanmar), 2318 (Cambodia), 2323 (Islamic Republic of Iran) and 2365 (Zimbabwe) because of the extreme seriousness and urgency of the matters dealt with therein.

New cases

5. The Committee adjourned until its next meeting the examination of the following cases: Nos. 2413 (Guatemala), 2414 (Argentina), 2415 (Serbia and Montenegro), 2416 (Morocco), 2417 (Argentina), 2418 (El Salvador), 2419 (Sri Lanka), 2420 (Argentina), 2421 (Guatemala) and 2422 (Venezuela) since it is awaiting information and observations from the governments concerned. All these cases relate to complaints submitted to the last meeting of the Committee.

Observations requested from governments

6. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 2068 (Colombia), 2265 (Switzerland), 2270 (Uruguay), 2317 (Republic of Moldova), 2321 (Haiti), 2343 (Canada), 2354 (Nicaragua), 2380 (Sri Lanka), 2393 (Mexico), 2394 (Nicaragua), 2397 (Guatemala), 2401 (Canada), 2403 (Canada), 2405 (Canada), 2406 (South Africa), 2407 (Benin), 2408 (Cape Verde), 2409 (Costa Rica) and 2411 (Venezuela).

Observations requested from governments and/or complainants

7. The Committee is still awaiting observations or information from the governments and the complainants in the following cases: Nos. 2292 (United States) and 2319 (Japan). The Committee is still awaiting observations or information from the complainants in the following cases: Nos. 2313 (Zimbabwe), 2322 (Venezuela) and 2351 (Turkey).

Partial information received from governments

8. In Cases Nos. 1865 (Republic of Korea), 2203 (Guatemala), 2259 (Guatemala), 2279 (Peru), 2295 (Guatemala), 2298 (Guatemala), 2314 (Canada), 2329 (Turkey), 2333 (Canada), 2339 (Guatemala), 2341 (Guatemala), 2342 (Panama), 2372 (Panama), 2384 (Colombia), 2390 (Guatemala), 2396 (El Salvador), 2399 (Pakistan), 2400 (Peru) and 2412 (Nepal), the governments have sent partial information on the allegations made. The Committee requests all these governments to send the remaining information without delay so that it can examine these cases in full knowledge of the facts.

Observations received from governments

9. As regards Cases Nos. 2177 (Japan), 2183 (Japan), 2248 (Peru), 2264 (Nicaragua), 2275 (Nicaragua), 2302 (Argentina), 2326 (Australia), 2352 (Chile), 2361 (Guatemala), 2363 (Colombia), 2366 (Turkey), 2373 (Argentina), 2377 (Argentina), 2382 (Cameroon), 2385 (Costa Rica), 2392 (Chile), 2398 (Mauritius), 2402 (Bangladesh) and 2404 (Morocco), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

10. As regards Cases Nos. 2348 (Iraq), 2350 (Republic of Moldova), 2364 (India), 2374 (Cambodia), 2375 (Peru), 2376 (Côte d'Ivoire), 2378 (Uganda), 2386 (Peru), 2387 (Georgia) and 2391 (Madagascar), the Committee observes that despite the time which has elapsed since the submission of the complaints, it has not received the observations of the governments. The Committee draws the attention of the governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases if their observations or information have not been received in due time. The Committee accordingly requests these governments to transmit or complete their observations or information as a matter of urgency.

Suspension of complaint

11. The Committee suspended the examination of Case No. 2379 (Netherlands) at the request of the complainant organization. The Committee is awaiting the comments announced by that organization.

Withdrawal of complaint

12. The Committee takes due note of the request of the complainant, Union Network International (UNI), to withdraw its complaint in Case No. 2309 (United States).

Receivability of a complaint

13. The Committee considered a complaint against the Government of Mexico submitted by the chairperson of the Committee of Control and Surveillance of the National Organization of the Oil Industry Workers of Trust (Case No. 2410) not to be receivable.

Transmission of cases to the Committee of Experts

14. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Bangladesh (Case No. 2327), Portugal (Case No. 2334) and the Russian Federation (Cases Nos. 2216 and 2251).

Follow-up given to the recommendations of the Commission of Inquiry established to examine allegations of trade union rights violations in Belarus

15. In its previous report, in accordance with the decision taken by the Governing Body at its 291st Session (November 2004), the Committee requested the Government to transmit its observations and information relating to the measures taken to implement the recommendations of the Commission of Inquiry as soon as possible, taking due account of the deadline set by the Commission in respect of a number of its recommendations. The Committee has received partial observations from the Government. Noting that the deadline set by the Commission for action to be taken on some of its recommendations was 1 June 2005, the Committee urges the Government to send any additional observations and information on the measures taken to implement these recommendations as soon as possible so that it may examine this case in full knowledge of the facts at its next meeting.

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

Case No. 2197 (South Africa)

16. The Committee last examined this case, which concerns the alleged refusal of the South African Embassy to Ireland to meet and negotiate with the union chosen by the locally recruited personnel to represent them, at its June 2004 meeting. On that occasion, the Committee recalled that locally recruited embassy personnel are covered by the provisions of Conventions Nos. 87 and 98 and requested the Government to indicate the actual duties of the five locally recruited personnel at the South African Embassy in Ireland who are members of the complainant trade union (see 334th Report, approved by the Governing Body at its 290th Session (June 2004), paras. 95-131).

17. In communications dated 28 September and 31 October 2004, the Government provided the list of duties of the locally recruited personnel and informed the Committee that it had always supported and endorsed social dialogue, fair labour relations and the principles of freedom of association and collective bargaining, as evidenced by its labour relations legislation and its Constitution, as well as the ratification of Conventions Nos. 87 and 98. The Government added that it did not endorse the attitude adopted by the Embassy in Ireland in its policy "not to negotiate or work through a third party, in relation to issues of labour relations" and was currently in discussions with the Embassy on this issue. Employees in its embassies were entitled to representation in respect of work-related issues and the Government recommended and encouraged its embassies to establish policies and procedures for the resolution of work-related disputes, such as grievances and discipline. The Government finally stated that it would endeavour through the principles of social dialogue to arrive at an amicable solution to this case.

18. In a communication dated 24 March 2005, the complainant, Mandate Trade Union (MTU), indicated that it had concluded an agreement with the Government of South Africa to formalize the relationship between the parties and secure the effective observance of Conventions Nos. 87 and 98. The complainant attached to the communication a copy of the Recognition and Procedural Agreement between the Government of South Africa and the MTU, dated 2 March 2005. The complainant finally stated that it wished to withdraw its complaint, given that the Government had undertaken to fully implement the agreement.

19. The Committee takes note with satisfaction of the Recognition and Procedural Agreement between the Government of South Africa and the MTU, dated 2 March 2005, which put an end to the dispute concerning the locally recruited personnel at the South African Embassy in Ireland by formalizing the relationship between the parties and securing the effective observance of Conventions Nos. 87 and 98. The Committee commends the parties for their successful efforts. The Committee also takes note of the complainant's wish to withdraw the complaint pursuant to the resolution of this case.

Case No. 2221 (Argentina)

20. In its March 2004 meeting, the Committee requested the Government to keep it informed of all new measures adopted in order to remedy the imbalance in the composition of the Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors (see 333rd Report, para. 16).

21. In its communication of 18 October 2004, the Government states that the Supervisory Commission has an essentially consultative function and that all the sectors have equal rights, ensuring that there is no imbalance between the different parties. The Government explains that the Supervisory Commission in no way assumes the functions of the appellate authority (the Ministry of Labour), which carries on those functions in full, and that the objective of the legislation in force is to protect workers' rights. The Government states that the Supervisory Commission is made up, on the one hand, of representatives of the publishing sector and, on the other, of representatives of the Trade Union of Newspaper and Magazine Vendors of the Federal Capital, the National Guild Federation and the Society of Newspaper and Magazine Distributors; it is chaired by an official of the Ministry of Labour, Employment and Social Security with the rank of Secretary.

22. The Committee takes note of these observations.

Case No. 2188 (Bangladesh)

23. During its last examination of the case at its November 2004 meeting (see 335th Report, paras. 23-27), the Committee had: (a) requested the Government to clarify whether the case of Ms. Taposhi Bhattacharjee had been finally determined by the Appellate Division of the Supreme Court of Bangladesh or whether the Government's appeal against the High Court Division's decision of reinstatement was still pending and in the event of the case still pending, requested the Government to provide it with a copy of the decision once it was issued and to keep it informed in this regard; (b) in relation to the warnings issued to the ten union officials, the Committee had noted that it had not been provided with any further details and urged the Government to give appropriate directions to the management of the Shahid Sorwardi Hospital so that these warnings are withdrawn and to keep it informed in this respect.

24. In its communication of 2 May 2005, the Government has clarified that Ms. Taposhi Bhattacharjee has been reinstated in service in accordance with the decision of the High Court and has also been paid her back salaries and outstanding benefits as per the service rules. The Government has also indicated that its appeal against the decision of the reinstatement of Ms. Taposhi Bhattacharjee is pending before the High Court (Appellate Division) and that the decision of the Appellate Division will be transmitted to the Committee as soon as it is given. The Government has, however, not furnished any further information in respect of the warnings issued to the ten union officials by the management of the Shahid Sorwardi Hospital.

25. The Committee takes note of the information that Ms. Taposhi Bhattacharjee has been reinstated in service and also paid her back salaries and other outstanding benefits. The Committee also notes that the appeal of the Government against the decision of the reinstatement of Ms. Taposhi Bhattacharjee is pending before the High Court (Appellate Division). As in its previous recommendations (332nd Report, para. 15), the Committee strongly hopes that the Appellate Division will issue a judgment in conformity with freedom of association principles confirming the High Court decision reinstating her in her job with full benefits. The Committee requests the Government to keep it informed in this regard and to provide it with a copy of the decision of the Appellate Division once it is issued.

26. Noting that the Government has not furnished any further information in respect of the warnings issued to the ten union officials, the Committee once again requests the Government to give appropriate directions to the management of Shahid Sorwardi Hospital so that these warnings are withdrawn and to keep it informed in this respect.

Case No. 2182 (Canada/Ontario)

27. The Committee last examined this case, which concerns legislative provisions that encouraged decertification of workers' organizations, at its March 2004 meeting, where it requested to be kept informed of developments (see 333rd Report, paras. 20-22).

28. In a communication of 24 January 2005, the Government of Ontario informed the Committee that, on 3 November 2004, the new Government introduced the Labour Relations Statute Law Amendment Act, 2004 (Bill 144) into the legislature. If passed, Bill 144 would repeal the provision that requires the posting and distribution of decertification information in unionized workplaces (section 63.1 of the LRA), and a related provision (section 63 (16.1)) concerning employers.

29. Noting this information with interest, the Committee requests the Government to keep it informed of developments concerning the enactment of Bill 144 and to provide it with a copy of the Act once it is adopted.

Case No. 2305 (Canada/Ontario)

30. The Committee examined this case on the merits at its November 2004 session, where it made the following recommendations (see 335th Report, para. 512). The Committee: once again urges the Government to take measures to consider establishing a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation; once again urges the Government to ensure that recourse to arbitration for the settlement of disputes concerning teachers in Ontario be voluntary and that such arbitration, once freely chosen by the parties be truly independent and in line with freedom of association principles; requests the Government to ensure in future that full and good faith consultations are undertaken on any question affecting trade union rights; requests the Government to keep it informed of developments on all the above issues, in particular as regards the results of the Education Partnership Table. The Committee also requested the Government to keep it informed of developments in all these respects.

31. In a communication dated 24 January 2005, the Government of Ontario stated that, while there were no new specific developments to report, it continued to work with stakeholders to bring peace and stability in the education sector. Among other initiatives, the Government recently passed legislation (Professional Learning Program Cancellation Act) ending the "teacher testing program" which had been a contentious issue in the education sector; its elimination was welcomed by teachers' unions. The issue of professional development for teachers will be addressed as part of the Education Partnership Table Project, and is the subject of a recently released discussion paper that seeks input from interested parties. Teachers' unions have indicated that some provincial policy and/or funding actions are required as regards some issues, e.g. preparation time for elementary teachers, and average number of classes taught by secondary teachers. In response, the Minister of Education, school board trustees and teachers' federations have recently begun a new dialogue on workload issues.

32. The Committee notes with interest the information provided by the Government, from which it appears that social dialogue has resumed and is being pursued between the Government and stakeholders in the education sector. The Committee requests the Government to continue to keep it informed of developments, in particular, as regards results achieved at the education partnership table, including as concerns the establishment of a voluntary and effective dispute-prevention and resolution mechanism.

Case No. 2215 (Chile)

33. At its meeting in May-June 2004, the Committee made the following recommendations on certain questions that remained pending (see 334th Report, para. 241):

(a) In view of the circumstances of this case, the Committee once again requests the Government to adopt the necessary measures to ensure that the trade union official, Mr. Yapur Ruíz, is reinstated in his post at least until the last appeal brought before the courts is settled and requests the Government to keep it informed of developments.

(b) With regard to the allegations concerning the Trade Union of the Sanitation Works Company of the Vth Region, (ESVAL S.A.), the Committee requests the Government to carry out an investigation in this respect and keep it informed of its result.

34. In a communication dated 21 February 2005, the Government sends abundant information on the four rulings ordering the reinstatement of the trade union official, Erik Dusan Yapur Ruiz, and on a new legal action by the employer before the appellate court concerning the implementation of the ruling of the Court of First Instance.

35. As regards the alleged anti-union practices by the Sanitation Works Company of the Vth Region (ESVAL S.A.) against the union and its president and sole member, Mr. Aquiles Mercado, the Government states that the trade union in question is currently inactive as a result of the ruling of the Regional Electoral Tribunal of the Vth Region which annulled all official acts carried out by Mr. Aquiles Mercado as representative of the trade union after 20 March 2003, especially those relating to amendments to the union's by-laws. This inactivity will continue as long as the minimum quorum of members required for it to become active again is not achieved and the union is not formally dissolved by a competent court. The Government states, however, that, Mr. Aquiles Mercado terminated his employment with the Sanitation Works Company of the Vth Region (ESVAL S.A.), and both parties were entirely satisfied with the settlement which they signed.

36. The Committee takes note of all the Government's observations. It requests the Government to communicate the text of the final ruling given concerning the dismissal of the trade union official, Mr. Yapur Ruiz, and again requests the Government to take all measures in its power to ensure that he is reinstated until such time as a decision is given on the latest legal action after the successive judicial decisions ordering his reinstatement. The Committee deplores the delay that has occurred in the proceedings.

37. As regards the allegations concerning the Trade Union of the Sanitation Works Company of the Vth Region (ESVAL S.A.), the Committee notes the Government's statements to the effect that the union is currently inactive for want of the legal minimum membership, and that the union's president, Mr. Aquiles Mercado, signed an agreement terminating his employment. Under these conditions, the Committee will not pursue its examination of the case.

Case No. 2217 (Chile)

38. At its November 2004 meeting, the Committee made the following recommendations concerning the issues that remained pending (see 335th Report, para. 528):

Sopraval S.A.

- Noting that the two legal proceedings for anti-union practices are awaiting decisions, the Committee requests the Government to keep it informed of the decisions handed down with regard to the allegations relating to 2000 (threats to freedom of association of the members of the trade union, harassment and dismissal of the former trade union official Nelson Orellana Ramírez, interference by the company in a vote of censure of the former executive committee of the trade union).

- With regard to the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the company's buildings on 1 and 2 May 2000 (resulting in workers being injured and detained), the Committee once again requests the Government to send the report which it promised to request from the Governor of the Province without delay and to ensure that investigations begin into the allegations and, if appropriate, that the sanctions provided for in legislation are applied.

Cecinas San Jorge S.A.

- With regard to the dismissal of trade union official Álvaro Zamorano Miranda, the Committee requests the Government to keep it informed of any new administrative or judicial decisions taken and expects that the trade union official will be reinstated in his post shortly. The Committee regrets to note that the Government has not sent its observations on the other allegations according to which the company began slander proceedings against union officer Álvaro Zamorano Miranda. In this respect, the Committee requests the Government to keep it informed of any judicial decision in this respect, and of any administrative or judicial decision on the alleged promotion by the company of a trade union.

Electroerosión Japax Chile S.A.

- With regard to the dismissal of nine workers enjoying trade union protection, the Committee notes that according to the Government's statements no final decision has been issued on this matter and it requests the Government to keep it informed in this respect.

39. In its communication dated 11 April 2005, the Government states with respect to Sopraval S.A. that case No. 12.616 concerning a complaint of anti-union practices filed by the Sopraval enterprise trade union against Sopraval S.A. in the Court of La Calera was closed with the judgement of 14 March 2003, which dismissed the allegation of anti-union practices. The case was archived on 3 March 2004.

40. With regard to the Committee's recommendations: (1) concerning the report that the Government undertook to request from the Governor of the Province of Quillota in relation to the allegations of intimidation and violence by the police; and (2) that the Government should ensure that investigations are made into the allegations and, if appropriate, that the sanctions provided for in law are applied, the Government states that an official letter concerning these issues was sent to the Governor on 31 January 2005, but no reply has been received to date.

41. With regard to Cecinas San Jorge S.A., the Government indicates that an administrative investigation was undertaken in this case but it was concluded that there were insufficient grounds for the Ministry of Labour to make a judicial complaint regarding anti-union practices and request the reinstatement of union official Mr. Álvaro Zamorano. In fact, the employment relationship had actually been terminated by mutual agreement of the parties, and consequently any reinstatement of the official in question was no longer an issue.

42. With regard to the legal action for slander which Cecinas San Jorge S.A. had reportedly initiated against the official, the Government indicates that information was obtained through the competent labour inspector on whether the action, which had been prompted by statements that the official allegedly made on the radio, was actually being brought. Nevertheless, since the enterprise had agreed with the official in question to the termination of his employment relationship, the enterprise discontinued the legal action.

43. The Government also sends a communication from the Confederation of Production and Trade (CPC), which attaches comments by Cecinas San Jorge S.A.. The enterprise denies the allegations, indicating that there are three unions at the enterprise and a collective agreement is in force which will be renewed at the end of 2005. It also declares that there is no interference in the formation of trade unions or in union membership and that Mr. Álvaro Zamorano Miranda (a former trade union official) resigned voluntarily from his post at the enterprise on 10 December 2001 and received the statutory severance pay. The enterprise dropped its slander action against the former worker since, according to the enterprise, he had made a deposition to a notary that his statements on the radio which had prompted the proceedings "were erroneous and based on malicious and unfounded comments made by third parties". The enterprise management also indicated that it was untrue that any incentive had been offered to workers at the enterprise to join a specific union, adding that "on the contrary, I have been able to ascertain hitherto that there are three trade unions currently operating at the enterprise, each under its respective leadership, and there were no irregularities of any kind at the time they were formed".

44. As regards Electroerosión Japax Chile S.A., the Government states that in the case before the 6th Labour Court of Santiago, the Court accepted the complaint and its decision was implemented. According to the ruling sent by the Government, the judicial proceedings concerning anti-union practices against union official Mr. Jorge Murua Saavedra were deemed admissible, his reinstatement was ordered, and heavy fines were imposed on the enterprise for unfair practices in collective bargaining. In addition, pursuant to the legal provision requiring publication on a half-yearly basis of the names of enterprises found guilty of anti-union practices, the Ministry of Labour placed Electroerosión Japax Chile S.A. on the list published in the second half of 2004.

45. With regard to the allegations against Sopraval S.A. concerning threats to the freedom of association of members of the trade union, harassment and dismissal of the former trade union official Mr. Nelson Orellana Ramírez, and interference by the company in a vote of censure of the former executive committee of the trade union, the Committee notes that the judicial authority rejected the complaint concerning anti-union practices and the case was archived on 3 March 2004.

46. As regards the allegations of acts of intimidation and violence by the police during a gathering of striking workers outside the company's buildings on 1 and 2 May 2000 (resulting in workers being injured and detained), the Committee notes that the Government has written to the Governor of the Province of Quillota and is waiting for a reply. The Committee requests the Government to send the Governor's report on these allegations as soon as it receives it.

47. With regard to the dismissal of trade union official Mr. Álvaro Zamorano Miranda by Cecinas San Jorge S.A., the Committee notes the Government's statement that an administrative investigation was undertaken in this case but it was concluded that there were insufficient grounds for the Ministry of Labour to file a judicial complaint of anti-union practices and request the reinstatement of union official Mr. Álvaro Zamorano Miranda. The Committee also notes the Government's statement that Mr. Álvaro Zamorano Miranda's employment relationship was in fact terminated by mutual agreement of the parties and the legal action against this official ended when the enterprise dropped the action. The Committee notes the enterprise's statements which confirm the above information.

48. With regard to the dismissal of workers enjoying trade union immunity at Electroerosión Japax Chile S.A., the Committee notes the Government's statement that the court admitted the judicial proceedings concerning anti-union practices against union official Mr. Jorge Murua Saavedra, ordered his reinstatement, imposed heavy fines on the enterprise for unfair practices in collective bargaining and placed it on the list of enterprises found guilty of anti-union practices. The Committee requests the Government to keep it informed of the effective reinstatement of Mr. Saavedra.

Case No. 2296 (Chile)

49. At its meeting in June 2004, the Committee made the following recommendations on questions that remained pending (see 334th Report, para. 274):

(a) Regarding the failure to deduct from wages of non-unionized employees sums corresponding to the advantages derived from the collective agreements of 1999 and 2001, the Committee points out to the trade union of the Empresa Distribuidora de Industrias Nacionales S.A. that it rests with the union to lodge an official complaint with the labour courts for payment of said deductions, if it so desires; the Committee also calls upon the Government to clarify the discrepancies between its own statements regarding deductions and the enterprise's communication on this subject, and to send it a copy of the decision handed down by the Labour Inspectorate to the effect that the enterprise has been fined, which the enterprise denies.

(b) Regarding the alleged dismissal of 102 workers of Distribuidora de Industrias Nacionales S.A. that had been brought before the Freedom of Association Office of the Labour Directorate, the Committee calls on the Government to keep it informed of any decision taken by the said Office.

(c) Regarding the alleged dismissal of all the workers of Andonaegui S.A., including the union officials, after the conclusion of the collective bargaining process, the Committee calls on the Government to keep it informed of the decision handed down by the judicial authority.

50. In its communication of 10 February 2005, the Government states with regard to the company Distribuidora de Industrias Nacionales S.A. that the Labour Inspectorate confirmed a contravention of section 346 of the Labour Code and the company was fined the equivalent of 14 monthly units of taxation for failing to deduct trade union dues from wages, failing to deduct amounts equivalent to 75 per cent of those dues, and failing to hand over those sums to the union. As regards the dismissal of 102 workers, the company's anti-union conduct was confirmed. Subsequently, through the offices of the Unit for the Defence of Freedom of Association, a complaint was made to the labour courts and was examined by the Eighth Labour Court of First Instance. As regards any judicial proceedings initiated by the trade union to challenge a decision of the Labour Directorate, the Government states that the workers' trade union at the company has not initiated any such proceedings in the labour courts, as the decision in question is considered to be favourable to them.

51. As regards the company Adonaegui S.A., the Government states that in the case examined by the Santiago First Labour Court of First Instance, a ruling handed down on 25 November 2003 imposed a fine equivalent to one monthly unit of taxation and ordered the reinstatement of the union officials in their normal posts, and cautioned the legal representative.

52. The Committee takes note of the Government's information, and notes with interest that the administrative and judicial authorities have imposed penalties for the anti-union conduct of the companies Distribuidora de Industrias Nacionales S.A. and Adonaegui S.A. The Committee requests the Government to communicate the ruling handed down on the dismissal of the 102 workers at the company Distribuidora de Industrias Nacionales S.A.

Case No. 2097 (Colombia)

53. At its November 2004 meeting, the Committee stated that it was awaiting the outcome of the administrative inquiry into the allegations made by the trade union organization SINTRAVI regarding the enterprise AVINCO S.A. (concerning pressure put on workers to conclude a collective agreement outside the union and the consequent withdrawal of non-statutory services for unionized workers, and the pressure put on workers to leave the union), and also waiting to receive copies of documents confirming that the former trade union official, Héctor de Jesús Gómez, had received the compensation provided for under the terms of the collective agreement (see 335th Report, paras. 46-49).

54. In its communication of 27 January 2005, the Government provides a copy of a communication sent to it by the company Cementos del Nare S.A. confirming that it has paid Héctor de Jesús Gómez the compensation required by the collective agreement, although he has refused it and consequently the compensation has been formally deposited with a court (the Government provides a copy of the relevant certificate).

55. The Committee notes this information with interest. As regards the allegations made by SINTRAVI, the Committee regrets that the Government has not sent any information as to whether an administrative inquiry has actually been carried out. The Committee requests the Government to inform it without delay of any such inquiry and whether or not it has begun and, if not, to initiate one and keep it informed in this regard.

Case No. 2297 (Colombia)

56. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 77-81). On that occasion, the Committee requested the Government to inform it whether, following the dismissals and transfers alleged to have taken place during the process of restructuring at the General Directorate of Taxation Support of the Ministry of Finance and Public Credit, any legal action had been taken as a consequence of anti-union discrimination and to transmit its observations regarding the communication of the Trade Union of Communications Workers (USTC) dated 16 June 2004.

57. These allegations refer to: (1) the voluntary retirement plan implemented by the Government in 1995, which involved the termination of more than 3,230 contracts of employment; (2) the removal of the USTC executive board in Maica, Guajira District; and (3) successive collective dismissals through the retirement, liquidation and closure of the TELECOM company, involving the dismissal of more than 7,000 workers and the consequent weakening of the union. The dismissed workers included trade union officials, and in these cases necessary steps were taken to suspend their trade union immunity before the dismissals took place. The complainant also makes other allegations concerning murders and threats against union members and officials, which have already been examined in the context of Case No. 1787 and are therefore not dealt with here.

58. In its communication of 1 April 2005, the Government states with regard to the restructuring of TELECOM that the President of the Republic has the power to eliminate, merge or liquidate national bodies. The Government reiterates the explanations given during the previous examination of the case, stating that the restructuring became necessary because the company had ceased to be viable in terms of pensions, finances and trading, and that Decrees Nos. 1615 and 2062 of 2003 ordered the elimination of public sector posts. The Government adds that, with regard to the union officials, in accordance with section 405 of the Substantive Labour Code, applications to suspend the trade union immunity of the officials concerned were made to the courts.

59. The Committee takes note of this information. As regards the process of restructuring at TELECOM, the Committee notes that, according to the statements of the complainant and of the Government, these measures were general in nature and affected all the workers, whether or not they were union members, and that their trade union immunity was suspended before dismissal took place. Under these circumstances, while it is true that the liquidation of the company weakened the trade union as a result of the considerable reduction in membership, the Committee is unable to determine whether the restructuring was carried out solely with the aim of rationalization, or whether it was a cover for acts of anti-union discrimination.

60. As regards the process of restructuring of the General Directorate of Taxation Support of the Ministry of Finance and Public Credit, the Committee regrets that the Government has not informed it whether or not any legal proceedings have been initiated for anti-union discrimination, and requests it to do so without delay.

Case No. 2208 (El Salvador)

61. The Committee last examined this case at its March 2004 meeting and on that occasion requested the Government to keep it informed of the rulings handed down on the dismissals of 11 union officers at Lido S.A. (see 333rd Report, para. 52, approved by the Governing Body at its 289th Session (March 2004)).

62. The trade union of the company Lido. S.A. (SELSA), in its communications of 23 November 2004 and 3 February 2005, states that the company continues to refuse the union's executive body access to its premises. The union adds that the company had reinstated a certain number of union officials, but still refused to reinstate five others. The company refuses to meet with the union on official premises or to reactivate the joint committee provided for under the terms of the collective agreement.

63. The Government, in communications dated 8 October 2004 and 28 January and 28 February 2005, states that the company has complied with the conciliation agreement signed by the parties on 3 July 2002, given that it deposits the wages of the 11 union officials once a fortnight with the Ministry of Labour, and those wages have been withdrawn by the officials without any problem. The Government adds that a number of meetings were arranged between the employer and workers to persuade the former to reinstate the officials. The Government states that, as no favourable reply was forthcoming from the employer at these meetings, the Ministry fined the company Lido S.A. the sum of US$77,000 for infringing section 251 of the Labour Code by obstructing the freedom of association of the union officials and disrupting the union with the aim of ensuring that the union could not continue to exist legally for want of the legal minimum membership as required by the Labour Code. The Government also states that the company has allowed the reinstatement of five union officials and that the company and the union have agreed to discuss the reinstatement of the remaining five within a short period of time. The Government will take follow-up action with regard to the agreements in question. The Government invites the complainant to file its new allegations with the Ministry of Labour.

64. In its communication dated 6 May 2005, the Government adds that one more trade union official has been reintegrated (Mr. Ernesto Hernández Castillo); with regard to the remaining four trade union officials, the company has indicated that it will look for the appropriate mechanism for their reintegration and the two parties have agreed to meet in order to find a satisfactory solution. The Government indicates that the company has indicated that it will verify the situation with regard to the alleged refusal to meet with the union and that the representative of the company refused knowledge of these facts; the company has a positive attitude towards resolving the problems. The company stated that there is good will to reactivate the joint committee through dialogue, and that its non-operation was due to external factors and changes in its membership on behalf of the company.

65. The Committee takes due note of these observations, and in particular of the large fine imposed on the company Lido S.A. for obstructing the freedom and association and reinstatement of six union officials. The Committee hopes that the remaining four officials will be reinstated in the company in the near future and notes that the company will meet with the trade union with regard to this issue and will look for an appropriate mechanism for their reintegration. The Committee requests the Government to keep it informed of developments including any ruling handed down with regard to the four dismissed officials. With regard to the alleged refusal of the company to meet with the union on official premises or to reactivate the joint committee provided for under the terms of the collective agreement, the Committee takes note of the company's statements and requests the Government to keep it informed of developments on these issues.

Case No. 2299 (El Salvador)

66. The Committee last examined this case at its March 2004 meeting and, on that occasion, requested the Government to take steps urgently to ensure that the competent authorities carry out an investigation into the alleged death threats against five trade union officials from STITAS by one of the owners of the J.R.C. Manufacturing S.A. of C.V. company and, if the alleged facts were confirmed, to punish those responsible and to guarantee adequate protection to these officials. The Committee considered that the trade union official, José Alirio Pérez Cañenguez, should be reinstated in his post without loss of pay and be authorized to exercise his trade union activities, and requested the Government to keep it informed of any new legal ruling handed down relating to the accusation of robbery against this trade union officer which, to date, had been provisionally put aside in the absence of sufficient evidence. The Committee considered that the denial of legal personality for the Private Security Services Industry Workers' Trade Union of El Salvador (SITRASEPRIES) was a violation of freedom of association, and urged the Government to recognize this trade union and to keep it informed in this respect. Lastly, the Committee requested the Government to provide without delay information on the specific facts that led to the dismissal of 17 trade union officials from the J.R.C. Manufacturing S.A. of C.V. company in October 2003 and to indicate whether these trade union members remained dismissed; the Committee also requested the Government to indicate the reasons for the dismissal of trade union official, Juana Ramírez, in February 2002, and, if it were proven that any of these officials had been dismissed by reason of their trade union activities, to ensure that they were reinstated in their posts without loss of pay (see 333rd Report, para. 564, approved by the Governing Body at its 289th Session (March 2004)).

67. In its communication of 10 March 2005, the complainant (FENASTRAS) sent a copy of the Ministry of Labour resolution of 29 October 2004 according to which the appeal by SITRASEPRIES was not admissible.

68. In its communications of 8 October 2004 and 20 January 2005, the Government states that the J.R.C. Manufacturing S.A. of C.V. company closed down its operations definitively in February 2004. As regards the workers laid off, the parties agreed to a settlement regarding payment of compensation at the General Labour Directorate on 15 and 23 June 2004.

69. With regard to the case of SITRASEPRIES, the Government maintains that two fundamental principles are at stake: the principle of legality, and the principle that the law must be respected to the letter. Both of these principles have contributed to what is known as the "rule of law", according to which any judicial authority, executive power and activities of individuals must be consistent with the law. It is therefore claimed, quite properly, that the essential characteristic of a state based on the rule of law is the fact that the law is above the government and the governed. The Government maintains that the Department of Labour and Social Security, in denying legal personality for SITRASEPRIES, was only adopting a constitutionally valid decision, given that article 7, paragraph 3, of the Constitution expressly "prohibits the existence of armed groups of a political, religious or professional nature"; it is clear that a trade union falls into the last of these categories, and the union in the present case is indeed a professional body formed by persons who use and possess firearms and thus come expressly within the terms of the constitutional prohibition. The Government adds that, in this context, it decided on 28 October to declare inadmissible the application by Juan José Huezo, General Secretary of the complainant organization, to rescind the resolution declaring null and void the application for legal personality made by SITRASEPRIES, for the legal reasons set out in a note dated 29 October 2003. The Government adds that the Act concerning the organization and functions of the labour and social security sector and the Labour Code do not provide for any administrative mechanisms for challenging such resolutions and, given that an application to acquire legal personality for a trade union is a unilateral petition to the public administration and does not involve any dispute between the parties, section 602 of the Labour Code is not applicable. If no appeal is considered, the administrative channel is deemed to be exhausted once the resolution rejecting the petition is adopted. Consequently, it would be for the complainant to initiate the appropriate judicial proceedings to challenge the supposed violation. The final paragraph of article 86 of the Constitution stipulates that public officials have no powers other than those expressly accorded to them by law; consequently, admitting an appeal not provided for under the terms of the relevant legislation would constitute a violation of that legislation. The Government finally gives its assurance that freedom of association is protected in El Salvador by the laws in force.

70. In its communication of 22 April 2005, the Government again urges the complainant to use existing legal mechanisms for obtaining redress.

71. The Committee takes note of the Government's observations to the effect that that the Department of Labour and Social Security, in denying legal personality for SITRASEPRIES, was only adopting a constitutionally valid decision, given that article 7, paragraph 3, of the Constitution expressly "prohibits the existence of armed groups of a political, religious or professional nature"; it is clear that a trade union falls into the last of these categories, and the union in the present case is indeed a professional body formed by persons who use and possess firearms. The Committee notes that, according to the Government, the administrative decision can be challenged before the judicial authority. In this regard, the Committee reiterates that, in accordance with the principles of freedom of association, only the armed forces and the police can be excluded from the right to establish trade unions - which is a fundamental right. Consequently, all other workers, including private security agents should freely be able to establish trade union organizations of their own choosing. Under these circumstances, the Committee emphasizes once again that the denial of legal personality for the trade union SITRASEPRIES is a serious violation of freedom of association, and urges the Government to recognize that legal personality without delay and keep it informed of developments. The Committee also requests the Government to inform it of any future judicial ruling on this matter.

72. The Committee notes that the Government has not sent any information on the dismissal of the trade union official, José Alirio Pérez Cañenguez, and once again requests the Government to keep it informed of any new decision handed down concerning the charge of robbery brought against him. As regards the allegations regarding the company J.R.C. Manufacturing S.A. of C.V. company, the Committee notes that the questions still pending relate above all to the dismissal of the trade union official, Juana Ramirez, in February 2002, the dismissal of 17 union officials in October 2003, the dismissal of the union official, José Alirio Pérez Cañenguez, and the accusation of robbery made against him. The Committee notes the Government's statement to the effect that the company closed down its operations definitively in February 2004, and adds that the dismissed workers agreed on a settlement regarding compensation. The Committee notes that the Government's communication does not indicate which workers are referred to. It also notes that the Government does not give any response regarding the accusation of robbery made against the trade union official, José Alirio Pérez Cañenguez. In this regard, the Committee requests the Government to ensure that the dismissed trade union officials receive the statutory compensation, and to communicate any judicial ruling handed down concerning the criminal charge brought against José Alirio Pérez Cañenguez.

73. As regards the alleged death threats against five officials of the union STITAS by one of the owners of the J.R.C. Manufacturing S.A. of C.V. company, the Committee notes that the Government has not sent any observations and again requests it, as a matter of urgency, to take measures to ensure that the competent authorities carry out an inquiry into the matter and, if the allegations are shown to be true, to punish those responsible.

Case No. 2138 (Ecuador)

74. At its November 2004 meeting the Committee requested the Government to ensure that no person would be prejudiced in his or her employment by reason of their trade union membership or legitimate trade union activities, whether past or present. In particular, referring to the COSMAG company, the Committee requested the Government to undertake all necessary efforts to locate the workers who had been victims of acts of discrimination, so that they could be reinstated or, if that were impossible, so that they could receive adequate compensation. Furthermore, the Committee requested the Government to amend section 190 of the Promotion of Investment and Citizen Participation Act (which has been ruled unconstitutional by the Constitutional Court) so as to bring it into conformity with Conventions Nos. 87 and 98, ratified by Ecuador (see 335th Report, para. 856).

75. In its communication of 21 January 2005 the Government states that the workers in question were legally compensated and refers in this respect to the settlement documents they signed with the company and that the Government attaches. Furthermore, with respect to section 190 of the Promotion of Investment and Citizen Participation Act that was ruled unconstitutional by the Constitutional Court (section 190 of this Act replaced former section 224 of the Labour Code with the following: Section 224 - A collective agreement or accord is an agreement between one or more employers and one or more legally constituted workers' associations, as the case may be, for the purpose of establishing the conditions or basic principles in accordance with which subsequent individual employment contracts must be drawn up), the Government states that it was ruled unconstitutional by the Constitutional Court, and therefore that legal rule is not part of the Labour Code of Ecuador. The Government adds that the Committee's observations will be transmitted to the Legislative Power so that conformity with Conventions Nos. 87 and 98 will be taken into consideration in future discussions of legislation.

76. The Committee notes this information.

Cases Nos. 2017 and 2050 (Guatemala)

77. The Committee last examined these cases at its November 2004 meeting (see 335th Report, paras. 93-106). On that occasion, the Committee made the following recommendations:

- With regard to the La Exacta and/or San Juan El Horizonte farm, the Committee observes that the Government has not specified whether the new amicable settlement concluded on 24 October 2003 includes the reinstatement of the dismissed workers in respect of whom the courts had ordered reinstatement and requests the Government to keep it informed in this respect.

- With regard to the Tamport S.A. company, in respect of which the Committee had requested the Government to inform it concerning the legal proceedings under way to protect the money owed to UNSITRAGUA members who were dismissed because of the company's closure, the Committee requests the Government to inform it of the results of those proceedings.

- With regard to the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Committee requests the Government to send it the ruling handed down in that respect.

- With regard to the dispute at the La Aurora National Zoological Park, which was lodged with the Arbitration Court, the Committee requests the Government to keep it informed of the legal ruling with regard to the arbitrator's decision issued in December 2003, which was appealed by the company.

- With regard to the allegations of the dissent from SITRACOBSA over the decision by the Ministry of Labour to cancel the suspension of the contracts of workers belonging to the legitimate trade union (SITECOBSA) of the Corporacíon Bananera S.A. company, the Committee requests the Government to send its observations with regard to the alleged suspension of employment contracts for workers belonging to the other trade union (SITECOBSA) without delay.

- With regard to the allegations concerning the kidnapping, assaults and threats against the trade unionists of the Santa María de Lourdes farm, Mr. Walter Oswaldo Apen Ruiz and his family, the Committee requests the Government to send its observations and to ensure that the safety of the trade union member, which has been threatened, is guaranteed.

- With regard to the allegations relating to the murder of trade union members, Messrs. Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urges the Government to send information in this respect without delay.

- With regard to the dispute involving the Banco de Crédito Hipotecario Nacional, the Committee requests the Government to keep it informed of progress in the negotiating committee on all the ongoing issues and on the new allegations presented by UNSITRAGUA.

78. In communications dated 4 November and 2 December 2004 and 19 January and 16 March 2005, the Government states:

- With respect to the allegations concerning the Crédito Hipotecario Nacional, the Trade Union of Workers of the Crédito Hipotecario Nacional de Guatemala sent a summary of the labour dispute that had taken place between the Crédito Hipotecario Nacional de Guatemala and its workers, represented by the Trade Union of Workers of the same institution. The Committee recalls that the Government had provided information about action being taken by the negotiating committee in respect of these allegations. The Committee requests the Government to keep it informed of the progress made by that committee.

- With respect to the allegations relating to the Tamport S.A. company, Labour and Social Security Court No. 7 set a deadline of 24 hours for both parties, workers and employers, to appoint three delegates so as to be able to set up the conciliation tribunal and, should they not do so, the tribunal would appoint them officially. It is worthwhile stating that in this case neither of the parties promoted the group, so the tribunal did so officially. The Committee requests the Government to keep it informed of the final result of this proceeding.

- With regard to the dispute at the La Aurora National Zoological Park, the judicial authority confirmed the arbitrator's decision which had been appealed by the company. The arbitrator's decision is currently in the implementation phase, waiting for the joint commission, established in accordance with the arbitrator's decision, to issue the respective report. The Committee requests the Government to keep it informed of the report of the joint commission mentioned.

- With regard to the alleged suspension of the contracts of employment of workers belonging to the trade union SITRACOBSA, the decision to cancel the suspension of the contracts of employment is a matter for the judicial authority. Furthermore, the Government states that at the end of 1998 the trade union organization SITECOBSA had no members and can no longer legally exist. In view of this information, the Committee will not pursue its examination of these allegations.

- With regard to the dismissals from the La Exacta and/or San Juan El Horizonte farm, in respect of which reinstatement had been ordered, in September 2004 the acceleration committee, in which the Ministry of Labour and Social Welfare and UNSITRAGUA participate, was set up to serve as a conciliation body. The committee met on two occasions. During the second meeting, the reported dismissals were addressed, together with other matters. It was taken into account that immediately after the events that gave rise to the present complaint occurred, steps were taken to obtain the respective ordinary reinstatement judgements. The first level ruling favourable to the workers was contested by the employers and the second level ruling also ordered the reinstatement of the affected workers, as well as the payment of the respective labour benefits. To date it has not been possible to implement the second level ruling, given that the entity has been absorbed by other limited liability companies, which have so far not been identified, as the business register certifications are unavailable. It was therefore agreed that they would be transmitted through UNSITRAGUA for subsequent analysis, together with the representative of the Ministry of Labour. It was also agreed to convene a conciliation hearing for the employers' side, who would be summoned through the Ministry of Labour and Social Welfare. The Committee requests the Government to keep it informed of the reinstatement proceedings under way.

79. Lastly, the Committee regrets that the Government has not sent the requested information on the other pending issues. The Committee asks the Government to send the following information without delay:

- With regard to the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Committee requests the Government to send it the ruling handed down in that respect.

- With regard to the allegations concerning the kidnapping, assaults and threats against the trade unionists of the Santa María de Lourdes farm, Mr. Walter Oswaldo Apen Ruiz and his family, the Committee requests the Government to send its observations and to ensure that the safety of the trade union member, which has been threatened, is guaranteed.

- With regard to the allegations relating to the murder of trade union members, Messrs. Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urges the Government to send information in this respect without delay.

Case No. 2330 (Honduras)

80. In its November 2004 meeting, the Committee made the following recommendations regarding the questions that remained pending (see 335th Report, para. 880):

(a) While noting with interest the settlement reached on 10 July 2004 between the Government and the complainant organizations and in particular its clauses on salaries and deduction of trade union dues, the Committee requests the Government to indicate whether by virtue of that non-reprisal clause the sanctions (fines) on the president of COPEMH and against COPEMH and COPRUMH and the application for suspension of these organizations' legal personality have been abandoned or set aside.

(b) The Committee also requests the Government to keep it informed of the result of the lawsuit by the Minister of Education against the official Nelson Edgardo Cálix for slander, libel and defamation.

(c) Finally, the Committee requests the Government to keep it informed of the result of the application for protection of constitutional rights entered by the complainant organizations against the judgements, which, it is alleged, deny the right of these organizations to represent their members.

81. In its communication dated 9 March 2005, the Government states that the Court of Tegucigalpa acquitted Mr. Nelson Cálix of the offences of slander and libel and that this ruling was subject to an appeal for review for a procedural flaw and violation of the law before the Criminal Chamber of the Supreme Court of Justice which has still not issued a decision on the matter. With regard to the right of the teachers' associations to represent their members, the Government states that a ruling is pending on an amparo (enforcement of constitution rights) appeal lodged with the Constitutional Chamber of the Supreme Court by representatives of the Association of Secondary Teachers of Honduras (COPEMH) and the Professional Association of School Teachers of Honduras (COPRUMH) against the ruling issued by the Administrative Disputes Appeal Court on 12 September 2003 which upheld the decision handed down by the Administrative Disputes Court concerning the setting aside of an administrative act applied for by the abovementioned teachers' associations.

82. The Committee takes note of this information and requests the Government to communicate the result of the abovementioned ongoing proceedings before the Criminal Chamber and the Constitutional Chamber of the Supreme Court of Justice. The Committee also reminds the Government of its previous recommendation requesting it to indicate whether, by virtue of the non-reprisal clause contained in the settlement reached between the Government and the complainant organizations on 10 July 2004, the sanctions (fines) on the president of COPEMH and against COPRUMH and the application for suspension of these organizations' legal personality have been abandoned or set aside.

Case No. 2118 (Hungary)

83. During its last examination of the case in its November 2004 meeting (see 335th Report, paras. 119-120), the Committee repeated its earlier request that the Government take all necessary steps to amend section 33 of the Labour Code so as to lower the minimum threshold requirements for recognition as a bargaining agent and ensure that where no trade union reaches these thresholds, collective bargaining rights are granted to all unions, at least on behalf of their own members.

84. In its communication of 4 February 2005, the Government explained that the 50 per cent threshold requirement for the purpose of collective bargaining did not have to be reached by a single trade union but could be reached jointly by more than one trade union. Furthermore, when trade unions, either individually or jointly, did not meet this requirement, a collective agreement could be concluded if more than 50 per cent of the workers vote for such collective agreement. The Government explained that, thus, even if the concerned trade union or unions has/have a very small percentage of representativity, with the agreement of the majority of the workers, it/they would be entitled to conclude the collective agreement. According to the Government, these facts distinguished the system prevailing in Hungary from the situation described in paragraph 241 of the General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, 1994, referred to by the Committee in paragraph 119 of its 335th Report. The Government further explained that according to the prevailing system, only one collective agreement can be concluded with an employer which would cover all employees of the same employer and therefore it was obvious that at least 50 per cent of the workers should directly or indirectly support the one or more trade unions concluding the collective agreement.

85. The Committee takes note of this information. The information provided by the Government indicates that in the absence of the direct or indirect support of 50 per cent of the workers of an employer, no collective agreement may be reached by the trade unions in an establishment even on behalf of their own members. In other words, in the absence of such support, the trade unions in an establishment, either individually or jointly, would altogether be denied the right to bargain collectively with the employer. The Committee is of the view that this position is analogous to the one where a single union would be denied the right to bargain collectively with the employer if it does not have the support of 50 per cent of the workers. The Committee recalls that, if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 833). By analogy, when the unions in a unit do not jointly have the support of 50 per cent of the workers either directly or indirectly, they should similarly have the right to bargain collectively with the employer at least on behalf of their own members.

86. The Committee therefore reiterates its earlier request that the Government take all necessary steps to amend section 33 of the Labour Code so as to lower the minimum threshold requirements for recognition as a bargaining agent and ensure that where no trade union reaches these thresholds, collective bargaining rights are granted to all unions, at least on behalf of their own members. The Committee also requests to be kept informed of the developments in this respect.

Case No. 2301 (Malaysia)

87. This case concerns the Malaysian labour legislation and its application which, for many years, have resulted for workers in serious violations of the right to organize and bargain collectively: discretionary and excessive powers granted to authorities as regards trade unions' registration and scope of membership; denial of workers' right to establish and join organizations of their own choosing, including federations and confederations; refusal to recognize independent trade unions; interference of authorities in internal unions' activities, including free elections of trade unions' representatives; establishment of employer-dominated unions; arbitrary denial of collective bargaining. The Committee formulated extensive recommendations at its March 2004 meeting (see 333rd Report, para. 599) and last examined the follow-up to this case at its November 2004 meeting (see 335th Report, approved by the Governing Body at its 291st Session, paras. 130-132).

88. In a communication dated 14 February 2005, the Government reiterates the same comments it had made in its communication dated 19 August 2004, which were examined by the Committee at its November 2004 meeting.

89. The Committee notes with deep regret that the Government has not provided any new information in reply to its previous recommendations. In these circumstances, the Committee can only reiterate its previous conclusions which read as follows:

The Committee notes the Government's reply, its stated intention (without any specifics, however) to amend "certain provisions" in the labour laws, and the data provided. The Committee recalls that the matters complained of in the present case are extremely serious ones, and that it has been called to comment upon them in no less than seven cases over a period of more than 15 years, without any progress whatsoever. The Committee strongly deplores, once again, the continued total lack of cooperation of the Government, which merely repeats previous statements and arguments, does not provide a substantive reply or fails to respond altogether. In these circumstances, the Committee must reiterate its initial recommendations according to which: ...

(b) The Committee urges once again the Government to introduce in the near future legislation to amend the Trade Unions Act, 1959 and the Industrial Relations Act, 1967, to bring them into full conformity with freedom of association principles, by ensuring:

- that all workers without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, both at primary and other levels, and for the establishment of federations and confederations;

- that no obstacles are placed, in law or in practice, to the recognitions and registration of workers' organizations, in particular through the granting of discretionary powers to the responsible official;

- that workers' organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom; and

- that workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them.

(c) The Committee requests the Government to amend its legislation so as to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to regulating terms and conditions of employment by means of collective agreements.

(d) The Committee requests the Government to take rapidly appropriate measures and give instructions to the competent administrative authority, so that the 8,000 workers denied representational and collective bargaining rights in 23 named companies may effectively enjoy these rights, in accordance with freedom of association principles.

(e) The Committee requests the complainant and the Government to keep it informed on the court challenges filed by some employers and affecting some 2,000 workers, so that it may make an informed decision in full knowledge of the facts.

(g) The Committee suggests once again that the Government avail itself of the ILO's technical assistance, to help it bring its law and practice into full conformity with freedom of association principles.

90. The Committee urges the Government to address rapidly the issues raised in its recommendations and to keep it informed of developments thereon.

Case No. 2048 (Morocco)

91. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 133-135). On several occasions, it has requested the Government to provide copies of three decisions: first, the decision of the Rabat Court of Appeal concerning the sentences handed down against 21 striking farm workers at the Avitema farm; and, second, the two decisions of the Rabat Court of the First Instance and of the Rabat Court of Appeal concerning the criminal proceedings that resulted from certain events during the collective labour dispute at the Avitema farm in 1999 and the charges of "abuse of power" brought against Messrs. Abderrazzak Challaoui, Bouazza Maâch and Abdeslam Talha.

92. In a communication dated 28 January 2005, the Government sent the text of the Rabat Court of Appeal ruling of 26 December 2001 concerning proceedings against the 21 Avitema farm workers.

93. The Committee takes note of the ruling of the Court of Appeal, which upheld the ruling handed down by the lower court in respect of the workers at the Avitema farm but reduced the sentence on the grounds that it was too severe in the light of mitigating circumstances. The Committee again urges the Government to provide, without delay, copies of the two decisions of the Rabat Court of Appeal and Court of First Instance concerning the criminal proceedings that resulted from certain events during the collective dispute in 1999 at the farm and the charges of "abuse of power" brought against Messrs. Abderrazzak Challaoui, Bouazza Maâch and Abdeslam Talha.

Case No. 2308 (Mexico)

94. At its meeting in November 2004, the Committee requested the Government to take steps to register the amendments to the trade union by-laws requested by the complainant (the National Trade Union of Electrical and Allied Workers of the Mexican Republic), and to keep it informed in this regard (see 335th Report, para. 1042). The purpose of these amendments was to enable the union to extend its coverage to workers in the cable television sector, radio broadcasting, and the manufacturing of radios, televisions, light bulbs and electronics in general, rather than being restricted to the electrical industry as such. The Government had stated that, as was clear from the administrative decisions and the ruling handed down in this case, the sectors to which the complainant organization wished to extend its coverage fell within the remit of local government, according to section 527 of the Federal Labour Act, while the complainant organization belongs to the electrical industry, which falls within the federal remit, and different jurisdictions cannot be combined. The Committee had noted that the last judicial decision denied the complainant organization constitutional protection (amparo) and the protection of the justice system (see 335th Report, paras. 1039 and 1040).

95. In its communication of 9 February 2005, the Government reiterates that the National Trade Union of Electrical and Allied Workers of the Mexican Republic had gone through all the available administrative and judicial means provided for in national legislation regarding the request to register the amendments to its by-laws, without obtaining a favourable ruling. The collegiate circuit labour court accordingly ordered the case to be filed as definitively closed on 20 February 2004. The national tribunals ruled in accordance with the applicable legislation, with full autonomy, in accordance with law and with due regard to the procedural safeguards protecting the union. The union was able to make use of all the available legal means of defence. The Government adds that, given that the matter is now deemed to be res judicata, the Government cannot now take steps to register the amendments as requested by the Committee in its recommendation, as this would invalidate the rulings handed down by the competent judicial bodies. The union appears to be demanding that the Committee on Freedom of Association assume the role of a higher judicial or review body to re-examine previous rulings, which would be outside its remit.

96. The Government states that the trade union in question has the right to apply again for registration of the amendments to its by-laws, provided that the legal requirements are met; this does not imply any interference by the authorities with the union's right to organize its administration and activities.

97. The Committee takes note of the Government's information. It had already noted in its previous examination of the case that the legislation in force prevented the complainant from extending its coverage, and this was confirmed by the administrative and judicial authorities. The Committee therefore reiterates its previous recommendations, and requests the Government to take steps - including steps to amend legislation - with a view to ensuring that, in situations like the one described by the complainant, trade unions can amend their by-laws in order to broaden their coverage.

Case No. 2267 (Nigeria)

98. During its examination of the case at its June 2004 meeting (see 334th Report, paras. 658-660), the Committee had: (a) indicated that it expected the Government to ensure that the complaint concerning the 49 academic lecturers, including five trade union officials, dismissed for having exercised the right to strike was resolved by the competent labour institutions, including the National Industrial Court, in conformity with freedom of association principles, and to keep it informed rapidly of developments in this respect; and (b) requested the Government to ensure that the Academic Staff Union of Universities (ASUU) may recover its property and use its premises, and to keep it informed of developments in this respect.

99. The ASUU thereafter sent additional information in communications dated 1 July, 9 and 11 August, and 20 September 2004 indicating that the award of the Industrial Arbitration Panel that handled the dispute between the Government and the ASUU concerning the dismissed lecturers was notified by the Federal Minister of Labour and Productivity on 31 March 2004 and on the same day, a notice of objection was given by the ASUU to the Minister. The ASUU states that as per section 13(1) of the Trade Disputes Act (Cap 432), 1990, if notice of objection to the award of an arbitration tribunal is given to the Minister within the time and in the manner specified in the notice under section 12(2) of the Act, the Minister shall forthwith refer the dispute to the National Industrial Court. However, instead of referring the dispute to the National Industrial Court in compliance with the law, the Minister, in a letter dated 2 August 2004, indicated that the matter was being referred back to the Industrial Arbitration Panel for reconsideration. The ASUU states that such referral is contrary to section 12(3) of the Act as per which Minister shall not exercise his powers under section 12(2) until the award has been reconsidered by the tribunal.

100. In its communication of 27 August 2004, the Government indicated that the University neither denied the ASUU access to the secretariat nor took over the premises, as claimed. Instead, it was the former executive of the union under the chairmanship of Dr. Taiwo Oloruntoba-Oju that made way with the ASUU's property and locked up the secretariat.

101. The Committee takes note of the information provided by the Government. However, noting that no information has been provided by the Government in respect of the complaint concerning the 49 dismissed academic lecturers and noting that they were dismissed as far back as in May 2001, the Committee reiterates its previous recommendation that it firmly expects the Government to ensure that the complaint concerning the 49 academic lecturers, including five trade union officials, dismissed for having exercised the right to strike, is resolved by the competent labour institutions, including the National Industrial Court, in conformity with freedom of association principles and to keep it informed rapidly of developments in this respect.

Case No. 2006 (Pakistan)

102. The Committee last examined this case at its November 2002 meeting when it urged once again the Government to lift the ban on trade union activities at the Karachi Electric Supply Corporation (KESC) and requested it to restore without delay the rights of the KESC Democratic Mazdoor Union as collective bargaining agent. It further requested the Government to keep it informed of developments in the process of KESC privatization, in particular as regards the preservation of workers' rights, and to provide it with a copy of the agreement between the ministries and the All Pakistan State Workers Action Committee (APSWAC), once it was concluded (329th Report, paras. 106-108).

103. In a communication of 19 January 2005, the Government indicated that the Privatisation Commission for the privatization of KESC held a meeting in December 2004, during which it considered the various issues concerning KESC. The Government indicated that, as concerns this case, the following recommendation was adopted by the Commission: "under the Industrial Relations Ordinance (IRO), which will be applicable to KESC as well, ban on unions in KESC may be lifted six months after the closure of KESC".

104. While noting that the IRO is applicable to KESC workers, the Committee notes that the ban on unions in KESC may be lifted only six months after the privatization of KESC. It is not clear to the Committee whether this decision was reached in agreement with the unions concerned. The Committee emphasizes that it is important that governments consult with trade union organizations concerned to discuss the consequences of restructuring which could affect employment and working conditions of employees. The Committee urges the Government to ensure that the ban on trade union activities at KESC is lifted immediately and the rights of the KESC Democratic Mazdoor Union as collective bargaining agent is restored as soon as possible. The Committee requests the Government to continue to keep it informed of the developments in the process of privatization, in particular as regards the preservation of workers' rights.

Case No. 2134 (Panama)

105. At its meeting in March 2004 (see 333rd Report, paras. 113-115), the Committee recalled that the issues pending in the case referred mainly to the allegations of dismissal of trade union officials in the context of mass dismissals of public servants for partisan political reasons, which have affected thousands of public servants since the new Government took over (in September 1999), and the Committee at its March 2003 meeting had made the following recommendations:

- The Committee requests the Government to examine the possibility of offering new posts to the union officers dismissed, on the understanding that it is for the complainant to demonstrate the status of the 60 persons concerned as union officers. The Committee requests the Government to keep it informed in this respect.

- The Committee requests the Government to send it a copy of the ruling given in the criminal trial of the union officer, Alberto Ibarra, for offences against honour.

106. In its March 2004 meeting, the Committee took note of the Government's communication of 30 October 2003, in which it stated, with regard to the 60 persons mentioned by the complainant organization as being trade union officials, that in the documents submitted it had not noted that any of these were accredited as trade union officials, and that the complainant organization had also not provided proof to uphold the allegation, as requested by the Committee. With regard to the information requested on the ruling given in the criminal trial of Alberto Ibarra, the Government stated that the hearing set for April 2003 had been held but that the decision relating to this was pending. The Committee requested the Government to send it a copy of the ruling in the criminal trial of the union officer, Alberto Ibarra, for offences against honour, when this was handed down.

107. Subsequently, the National Federation of Associations and Organizations of Public Servants (FENASEP) sent a communication dated 6 February 2004 referring to the Government's previous reply and containing list of 14 senior managers of the Banco Hipotecario Nacional, whose status as senior managers was publicly known and legally certified. It also sends an attestation from the National Council of Unionized Workers (CONATO) stating that Ms. Xiomara Ita de Ambulo has been a FENASEP representative since 1993. FENASEP claims the status of trade union official for a number of other individuals, but the corroborating evidence to which it refers has not been forthcoming.

108. In its communication of 27 December 2004, the Government states that the alleged dismissals in this case were carried out by the previous Government for political reasons, and that the present Government will assess each case on its own merits. In its communication of 24 May 2004, the Government states that there has still been no ruling on the criminal proceedings against trade union official, Alberto Ibarra, for offences against honour, and that it will transmit the text of that ruling as soon as it is handed down. In its communication of 25 February 2005, the Government states that it is more than willing to comply with the ILO Conventions ratified by Panama, and has for that reason, and with a view to resolving these cases, proposed the establishment of a joint commission with FENASEP to seek, through dialogue and consultation, solutions which will as far as possible give effect to the recommendations of the Committee on Freedom of Association. To that end, the Government is planning the next phase of the commission to take place in the second week in March, and representatives of the ILO and of the PSI will be invited to attend these meetings as observers. The Government states that it will in due course report on any progress made and results achieved. In its communication dated 20 May 2005, the Government states that the bipartite commission has been established and studies the possibility to resolve the pending questions through negotiation.

109. The Committee is still awaiting the ruling in the criminal proceedings against Alberto Ibarra for offences against honour. At the same time, the Committee notes with interest the Government's indication that it has established a joint commission with FENASEP to seek, through dialogue and consultation, solutions to problems raised by that organization and that the commission studies the possibility to resolve the pending questions through negotiation. The Committee recalls that on previous occasions, it had requested the Government to examine, with FENASEP, the possibility of offering new posts to the union officers (whose status as union officers must be duly accredited) dismissed for political reasons in September 1999. The Committee requests the Government to keep it informed in this regard.

Case No. 2111 (Peru)

110. The Committee last examined this case at its meeting in November 2004, when it made the following recommendations (see the Committee's 335th Report, paras. 1164-1172):

(a) The Committee requests the Government to solicit information from the employers' organizations concerned, with a view to having at its disposal their views, as well as those of the enterprise concerned.

(b) The Committee deplores the fact that the Government has not sent the information requested by it at its March 2003 meeting regarding the allegations that remained pending.

(c) The Committee urges the Government once again to send it a copy of the final ruling on the dismissal of trade union officer Mr. Víctor Taype Zúñiga and hopes that the judicial authority will give a ruling on the matter without delay.

(d) Regarding the allegation relating to the criminal case for alleged aggravated defamation brought by the Southern Peru Copper Corporation against the Toquepala Mineworkers' Union and others, the Committee urges the Government to inform it of the judicial authority's ruling.

(e) With regard to the FNTMMSP's allegations dated 5 September and 1 October 2002 (the dismissal from Iscaycruz of union officers Mr. Tomás Castro, Mr. Edwin Espinoza Martínez and Mr. Jesús Vázquez Ampuero, union members Mr. Rafael Pardo Velarde, Mr. Nicolás Cano Richard Arturo and three others; the reduction in the number of union members from 126 to 36 as a consequence of the company's threats to make workers resign from the union; and the company's request to the Ministry of Labour for the union to be dissolved for not having the legal minimum number of members), the Committee regrets that the Government has not sent its observations and requests it to carry out an investigation immediately into these serious allegations and, should the alleged anti-union acts be proven, to take the necessary measures to rectify the situation. The Committee requests the Government to keep it informed in this respect.

(f) Lastly, the Committee again requests the Government to send it a copy of the ruling on the dismissal of trade union officer Mr. José Castañeda Espejo.

111. In its communication of 18 January 2005, the Government states that:

- as regards (a), it has asked the employers' organizations and companies involved in the case to provide further information;

- as regards (b), it has reiterated its request to the judicial authority to send the texts of rulings requested by the Committee;

- as regards (c), it has asked the President of the Supreme Court, in letter No. 024-2005 MTPE/OAJ, to forward the text of the definitive ruling on the dismissal of the trade union official Víctor Taype Zúñiga;

- as regards (d), the criminal division of the Tacna Superior Court confirmed, in a ruling of 18 July 2002, that it had rejected the criminal case in question;

- as regards (e), a resolution 08-03-DRTPSL-DPSC-SDRG in 2002 annulled the registration of the Single Union of Mining and Metal Workers of Iscaycruz on the grounds that it did not meet statutory membership requirements. The Government adds that in 2003, Act No. 27912 was adopted to amend the Collective Labour Relations Act, according to which a trade union must have at least 20 members (in the case of enterprise unions) or at least 50 members (in the case of other unions), and that a union's registration is deemed to have been cancelled once it has been dissolved by a decision of an absolute majority of its members, if the conditions for this as set out in the union's by-laws are met or the conditions for its existence are no longer satisfied, subject to a court ruling to that effect, in accordance with previous observations of the Committee;

- as regards (f), the Government states that it has requested the judicial branch to send a copy of the definitive ruling regarding the annulment of the dismissal of José Castañeda Espejo.

112. The Committee takes note of this information. The Committee is still waiting to receive information from the employers' organizations concerned in this case, in order to know their position, as well as that of the Government. The Committee regrets that, despite the time that has elapsed, it still does not have the information requested in its previous examinations of the case. In this regard, the Committee is still waiting for the final ruling concerning the dismissal of the union official Víctor Taype Zúñiga and that of the final ruling on the annulment of the dismissal of José Castañeda Espejo. As regards the allegations made by the National Federation of Miners, Metalworkers and Steelworkers of Peru (FNTMMSP) regarding: the dismissal at the Iscaycruz Mining Company of the trade union officials Tomás Castro, Edwin Espinosa Martínez and Jesús Richard Arturo, plus another three individuals; the reduction from 126 to 36 of the number of members as a result of the threats made by the company to force workers to leave the union; and the company's requests to the Ministry of Labour to dissolve the union on the grounds that it does not have the requisite number of members, the Committee takes note of the Government's information. It is nevertheless bound to regret the fact that the Government has not carried out an investigation into the dismissals and the pressure exerted by the company on workers to leave the union, as it had requested in its previous examination of the case, and requests that it do so immediately and keep it informed in this regard.

Case No. 2211 (Peru)

113. The Committee last examined this case at its June 2004 meeting, and on that occasion made the following recommendations (see 334th Report, paras. 661-680):

(a) The Committee requests the Government to confirm the reinstatement of the 574 workers of the telecommunications sector who were dismissed, including the five workers of the subcontractor, Telefónica de Gestión de Servicios Compartidos S.A. TGSC, according to the court ruling. The Committee requests the Government to keep it informed in this respect.

(b) Regarding the allegations presented by the ICFTU concerning police repression in the framework of the strike that took place from July to September 2002 and in which many unionists were arrested and many others injured and two union headquarters damaged, the Committee expresses its concern at the gravity of the allegations. It requests the Government to carry out an independent investigation without delay into the allegations and if proven to be guilty, to punish the guilty parties and ensure that such interference does not occur in the future. The Committee requests the Government to keep it informed in this respect.

114. The Government sent its observations in communications dated 28 January, 16 and 21 February, 3 March and 19 April 2005, referring to a number of legal actions initiated by workers at the Telefónica del Perú enterprise who were dismissed for participating in or supporting a strike that took place between July and September 2002.

115. The Committee takes note of this information. It also notes, however, that the dismissals to which the Government refers resulted from the strike called in response to the collective dismissal of 574 workers in the telephone sector. The Committee recalls that the Constitutional Court, in its ruling of July 2002, ordered the reinstatement of the 574 worker, and that, in its previous examination of the case, it had requested the Government to inform it whether these workers had been reinstated. The Committee observes that the Government does not provide this information. The Committee accordingly requests the Government once again to inform it whether the 574 workers dismissed from the telephone sector have been reinstated, as the Constitutional Court ordered, and whether an independent inquiry has been held into the allegations made by the ICFTU concerning police repression during the strike that took place between July and September 2002, and to send the results of the inquiry.

Case No. 2284 (Peru)

116. The Committee last examined this case at its meeting in March 2004 (see 333rd Report, paras. 849-862). On that occasion the Committee observed that: (1) the complainants had alleged that the decision made by the Lima Water and Sewerage Company (Servicio de Agua Potable y Alcantarillado de Lima, SEDAPAL S.A.) to end its contract with CONCYSSA S.A. would lead to mass dismissals and the dissolution of the Single Trade Union of Water and Sewerage Control Workers (SUTOPEC); (2) the complainants and the Government agreed that the contract between SEDAPAL S.A. and CONCYSSA S.A. would have ended; (3) the complainants had not alleged that the legal relationship between the enterprises was ended for anti-union purposes. The Committee considered in these conditions that the information in the Committee's possession did not allow it to determine whether the case concerned a matter of freedom of association, and requested the Government to transmit all eventual decisions taken by the authorities concerning violations of freedom of association.

117. In its communication of 9 February 2005, the Government states that SEDAPAL S.A. indicated that it had concluded contracts in connection with maintenance work on the water and sewerage systems and pumping station operations with the company CONCYSSA S.A., the latter being responsible for providing trained workers, materials, equipment and anything else that might be necessary. CONCYSSA S.A. assumed exclusive responsibility for the workers it hired. The Government also states that more than 200 workers at CONCYSSA S.A. have initiated legal proceedings against that company and against SEDAPAL S.A. in relation to alleged contraventions of labour law, and that no final ruling has yet been handed down.

118. The Committee takes note of this information. In these conditions, given that in the light of the Government's new observations, it is unable to determine whether this case concerns a matter of freedom of association, the Committee will not proceed with an examination of these allegations.

Case No. 2289 (Peru)

119. The Committee last examined this case at its November 2004 meeting (see 335th Report, approved by the Governing Body at its 291st Session, paras. 1186-1215). On that occasion, the Committee made the following recommendations:

(a) The Committee urges the Government to carry out an investigation without delay into the allegation that state enterprise Electro Sur Este S.A.A. violated the terms of an arbitral award by using threats of dismissal and other sanctions in order to insist that trade union travel expenses should be accounted for. The Committee requests that the Government keep it informed in this respect.

(b) The Committee requests the Government to send additional observations concerning the allegation that over 50 per cent of the permanent workforce at Luz del Sur has been dismissed.

(c) The Committee expresses the hope that the judicial authority will come to a quick decision on the dismissal of the general secretary of SUTREL, Mr. Luis Martín del Río Reátegui, from the Luz del Sur S.A.A. company and, should it order that Mr. Reátegui be reinstated, asks the Government to ensure that the judicial decision is put into effect immediately and that he is paid any outstanding wages. The Committee requests the Government to keep it informed of the judicial decision and to send it a copy of the judgement handed down.

(d) Regarding the registration of the executive committee of the Peruvian Union of Folklore Artists (SITAFP), the Committee requests the Government to keep it informed of the result of the pending administrative appeals, as well as of the outcome of any legal proceeding initiated in this respect.

120. With regard to the demand that accounts be provided and the alleged violation of the terms of an arbitral award by the state enterprise Electro Sur Este S.A.A., the Government considers, in its communication of 13 January 2005, that the purpose of the arbitral award decided by the collective agreement between the Federation of Peruvian Light and Power Workers (FTLFP) and Electro Sur Este was to grant an amount of money to cover the travel of union members undertaking union activities outside the workplace. The Government considers that the enterprise has been complying with the terms of the arbitral award and is not distorting them by asking for the amounts granted to be accounted for, inasmuch as the money allocated for this purpose forms part of the public state budget. The Government also considers that the application of the directives on management and budgeting of the organizations coming under the National Fund for Financing State Enterprise Activity (FONAFE) and its regulations at Electro Sur Este neither distorts nor violates the benefit enjoyed by the trade unions of having their travel expenses paid by the enterprise, inasmuch as the only thing required is that those expenses be justified. The Government also recalls that the collective agreement which establishes the travel expenses benefit as a mandatory provision is of a permanent nature and may only be modified by the same parties that signed it. Hence the FONAFE directives and regulations within the enterprise do not seek to modify the content of the abovementioned mandatory provision; on the contrary, they reaffirm the existence of the benefit but require that the expenses incurred by union officials be specified in order to justify the use of those funds. In another communication dated 17 January 2005, the Government reaffirms that justification of trade union travel expenses does not contravene any fundamental collective right, but merely complies with official policy on actual public expenditure in all state offices and public enterprises.

121. With regard to the dismissal of over 50 per cent of the permanent workforce at Luz del Sur, the Government indicates in its communication of 18 February 2005 that Luz del Sur, in a letter dated 19 January 2005, stated that the allegations made were totally false, malicious and unfounded, that there had never been any arbitrary dismissals without justification of over 50 per cent of the workforce, and that no complaint or legal proceedings had been brought against the enterprise in this connection. The Government states that the investigatory proceedings available to any worker who considers that his labour rights have been violated are covered by the relevant regulations in Peruvian law.

122. As regards the dismissal of the SUTREL general secretary, Mr. Luis Martín del Río Reátegui, from Luz del Sur S.A.A., the Government indicates that the first-level ruling dated 25 October 2004 quashed the dismissal and ordered the reinstatement of the worker and the payment of all outstanding wages. The Government states that an appeal has been lodged against the ruling and is currently before the higher judicial body, the Duty Labour Chamber.

123. Finally, with regard to the alleged refusal to register the executive committee of the Peruvian Union of Folklore Artists (SITAFP), the Government indicates that the first instance of the Labour Administrative Authority dismissed the request to recognize the executive committee elected by the complainants and the second instance confirmed the first-level decision. By directorial order of 26 January 2005, the appeal lodged by SITAFP against the second-level decision was dismissed. With this last ruling, the Government indicates that the administrative processes are deemed to be exhausted and that no civil or labour action by SITAFP has been registered.

124. The Committee notes the information provided by the Government. The Committee requests the Government to keep it informed of the outcome of the judicial proceedings concerning the dismissal of the SUTREL general secretary, Mr. Luis Martín del Río Reátegui and, should the first-level ruling ordering the reinstatement of the union official in question be confirmed, to take the necessary steps to ensure that he is reinstated immediately.

Case No. 2291 (Poland)

125. The case concerns numerous acts of anti-union intimidation and discrimination including dismissals, by the management of two companies (Hetman Limited and SIPMA S.A.) as well as partiality by the Public Prosecutor's Office, lengthy proceedings and non-execution of judicial decisions. During its last examination of the case, the Committee urged the Government to reiterate and intensify its efforts, under the auspices of the tripartite Regional Social Dialogue Commission, to bring the parties back to the bargaining table and resume social dialogue, and ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards recognition of unions and effective protection against acts of anti-union discrimination and interference (see 333rd Report, approved by the Governing Body at its 289th Session (March 2004), paras. 878-919).

126. In a communication dated 2 November 2004 the complainant union NSZZ "Solidarnosc" provided further information with regard to the dispute in the SIPMA S.A. enterprise. The complainant alleged that the employer had tried to avoid cooperation with the enterprise-level trade union ever since its authorities were elected in February 2002. Thus, on 22 November 2002, the employer brought a civil lawsuit before the Lublin District Court alleging that the trade union lacked legal personality as the registration procedure in the National Court Register had not been completed due to the union's inadvertence. In reply to this, the complainant stated that according to the legislation in force, the enterprise branches of NSZZ "Solidarnosc" were subject to registration in the regional sections of NSZZ "Solidarnosc" and thereby had acquired legal personality. Thus, the enterprise-level trade union in SIPMA S.A. had already been registered in conformity with article 14 of the Trade Union Act of 23 May 1991 and the case law of the Supreme Court dating from 1993. This practice had also been confirmed by the Ministry of Justice in a letter to the president of NSZZ "Solidarnosc" dating from 2003.

127. According to the complainant, there was no doubt that the employer was under an obligation to cooperate with the enterprise-level trade union. However, the proceedings concerning the existence of this obligation had been pending since 22 November 2002 and no first hearing had been organized. Four different courts had been referring the case to one another, considering themselves as not having competence in the matter. In these conditions, it was impossible to impose on the employer an obligation to cooperate with the trade union. An excessive delay in court proceedings was in itself an infringement of the right to appropriate protection against discrimination and constituted a violation of freedom of association principles and Conventions.

128. The complainant further stated that the Lublin District Labour Court suspended the proceedings concerning the dismissal of Zenon Mazus, former leader of the enterprise-level trade union in SIPMA S.A., until the issuing of the Court's decision in the abovementioned proceedings concerning the recognition of the employer's obligation to cooperate with the trade union. The proceedings concerning Zenon Mazus had therefore been pending since 8 July 2002.

129. With regard to the criminal charges filed against 19 senior managers of SIPMA S.A. for impeding trade union activities and violating workers' rights on 14 October 2003, the complainant stated that there had been no action on the side of the courts, while the case was transferred to the Kielce District by the Public Prosecutor, because of the lack of action on the side of the Public Prosecutor in the Lublin District.

130. The complainant finally stated that the result of the failure to secure a fair trial on the above violations of freedom of association constituted a denial of justice, made it impossible to oppose the activities of the employer aimed at eliminating the trade union from the enterprise, and brought about a decline in trade union affiliation. In 2003, the number of trade union members fell below nine, and the NSZZ "Solidarnosc" section in the region of Lublin undertook activities aiming at counteracting the dissolution of the trade union at the SIPMA S.A. enterprise. More specifically, it was transformed into an inter-enterprise-level trade union, absorbing the remaining members of the trade union in the SIPMA S.A. enterprise. However, the employer continued to evade cooperation with the trade union. Thus, according to the complainant, the recommendations of the Committee had not been implemented and the situation called for further measures.

131. In a communication dated 24 February 2005, the Government stated that the 1st Civil Department of the Lublin District Court initiated on 3 December 2002 the examination of the case filed by SIPMA S.A. against the enterprise-level trade union concerning the recognition of the employer's duty to cooperate with the trade union. The case was then transferred for review to the 7th Labour Department of the District Court, which transferred it back to the Labour Department of the Lublin District Court by means of its decision of 4 February 2004. After an appeal filed by the plaintiff, the case was examined by the Lublin Court of Appeal, which acknowledged, by means of its ruling dated 31 March 2004, that the 1st Civil Department of the Lublin District Court was the body competent to hear this case as it did not concern the employment relationship and thus was not subject to review by a labour court. The first hearing before the competent court was held on 8 June 2004, but was adjourned as the plaintiff had to assume a standpoint with regard to the alleged loss, by the defendant, of its capacity to be a party in civil lawsuits. As declared by both parties to the dispute, the NSZZ "Solidarnosc" trade union operating in SIPMA S.A. had ceased to exist as of 5 April 2004, after it was removed from the register of NSZZ "Solidarnosc" trade union organizations. The removal took place when the NSZZ "Solidarnosc" Inter-Enterprise Organization of the Middle East Region was established and the members of the trade union at the SIPMA S.A. enterprise joined the newly established entity. This was considered by the defendant to be a determinant factor with respect to the union's existence and its capacity to take part in the proceedings.

132. According to the Government, the fact that the capacity to be a party in a civil lawsuit no longer existed was not disputed by the parties. Thus, upon obtaining the position of the plaintiff, the 1st Civil Department of the Lublin District Court decided on 22 November 2004 to suspend the proceedings due to the fact that a party to the case had lost its capacity to participate in the proceedings. Nevertheless, actions were taken ex officio to proceed with the case. The judge ordered that certified copies of documents confirming the establishment and registration of the NSZZ "Solidarnosc" Inter-Enterprise Organization of the Middle East Region be submitted. Such information would enable the court to determine the plaintiff's capacity to be a party in civil cases, which was a prerequisite for continuing the proceedings. The Government concluded that although the duration of the proceedings was extended due to the referral of the case to various courts, it was necessary to clarify the issue in order to avoid a future action to overturn the court's ruling.

133. With regard to Zenon Mazus, the Government stated that he filed a suit for recognition of termination of his employment contract as ineffective. The examination of the suit commenced on 2 July 2002 at the 7th Labour Department of the Lublin District Court. Six hearings had taken place so far. Although the first of them was scheduled for 1 July 2003, the dates of subsequent hearings were fixed regularly, with much shorter intervals and the adjournments of the hearings were caused by new motions as to evidence (in particular witness hearings) filed by both parties. During hearings held on 16 December 2003, 12 February 2004 and 15 April 2004 the Court interviewed the witnesses. The last hearing was adjourned upon the application of the plaintiff, in order to assume a standpoint with regard to the defendant's position and to file potential motions as to evidence. At the next hearing held on 27 May 2004, the Court summoned a member of the defendant company's Management Board. Due to his justified absence, however, the Court rescheduled the hearing once again for 9 September 2004. On that date the proceedings were suspended by the Court upon the defendant's application. The District Court decided that examination of the employee's case depended on the result of a parallel civil lawsuit in progress before the Lublin District Court. The court of second instance did not share that opinion, however, and having examined the objection raised by the plaintiff, decided on 8 November 2004, to quash the decision on suspending the proceedings. The next hearing had been scheduled for 11 January 2005.

134. With regard to the penal charges brought against 19 senior managers of SIPMA S.A. accused of impeding trade union activity and violating workers' rights, the Government stated that upon delivering certified copies of the indictment, 11 of the accused filed lengthy procedural writs with the court. Additionally, one of them filed a motion for the case to be returned to the Prosecutor's Office. This application was rejected on 13 November 2003 and further rejected on 25 November 2003 and 29 December 2003 by the Lublin District Court. After this the judge in charge of the file was replaced on 19 May 2004. The new judge was given three months to become acquainted with the material (42 files) and a new hearing was scheduled for 27 October. The proceedings were not initiated however, as one of the accused (Jan Pradziuch) failed to show up. His absence was justified due to a medical sick leave. Thus, the court adjourned the case and admitted evidence (an opinion issued by the Forensic Medicine Department of the Lublin Medical Academy) on whether the accused could participate in the hearings. Five of the accused filed motions for the case file to be returned to the Prosecutor's Office on grounds of the case's subject matter. The said motions were not examined as planned on 15 November 2004, because the case file had not been returned from the Medical Academy. The next meeting was scheduled for 8 December 2004. The large number of accused persons, the bulky evidence material and a number of formal or procedural motions definitely contributed to the fact that the proceedings were lengthy. However, these were objective obstacles over which the court had no influence.

135. The Government finally stated that in order to intensify the Court's efforts and to undertake action aimed at completing the aforementioned proceedings promptly, the abovementioned cases would remain in the area of interest of the Common Courts Department in the Ministry of Justice. They had also been covered by the administrative supervision of the chairpersons of the respective courts.

136. The Committee notes from the latest communications of the complainant and the Government that no steps appear to have been taken under the auspices of the Regional Social Dialogue Commission to bring the parties back to the bargaining table as requested by the Committee in its previous recommendations. On the contrary, the climate of bitter industrial relations characterized by permanent conflict and the refusal of individual employers to recognize a workers' organization and enter into good-faith bargaining with it, observed by the Committee during the last examination of this case, seems to persist (see 333rd Report, para. 916). The Committee further notes with regret that the NSZZ "Solidarnosc" trade union in the SIPMA S.A. enterprise has ceased to exist and had to be amalgamated with the NSZZ "Solidarnosc" Inter-Enterprise Organization of the Middle East Region so as to maintain the representation of the few members which remained in the enterprise. The Committee recalls that since inadequate safeguards against acts of anti-union discrimination in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 700).

137. With regard to the need to ensure effective protection for trade union leaders against acts of anti-union discrimination and interference, which was part of its previous recommendations, the Committee notes with regret from the communications of the complainant and the Government, that the judicial proceedings initiated by Zenon Mazus, leader of the NSZZ "Solidarnosc" trade union in the SIPMA S.A. enterprise, in order to render his dismissal ineffective, have been pending since 2 July 2002, that is, for almost three years now. The Committee observes in particular that the first hearing of this case was fixed 12 months after the filing of the complaint and that subsequently, the proceedings were suspended for several months (between 9 September and 11 January 2005) as a result of a parallel lawsuit filed on 3 December 2002 by the employer. With regard to the latter lawsuit, the Committee notes that although its purpose was to determine whether the employer had a duty to cooperate with the trade union, the courts do not appear to have examined this issue until today. On the contrary, for two-and-a-half years successive rulings have been issued on preliminary issues like the determination of the competent court and the standing of the defendant trade union after its amalgamation with the NSZZ "Solidarnosc" Inter-Enterprise Organization of the Middle East Region. Finally, with regard to the penal charges brought against 19 senior managers of SIPMA S.A. on 14 October 2003, the Committee notes that according to the Government, this case has been pending due to the large number of accused persons, the bulk of the materials and a series of formal or procedural motions filed by the parties. The Committee further observes that the Government does not provide a response to the complainant's allegation that this case was transferred to the Kielce District by the Public Prosecutor because of the lack of action on the side of the Public Prosecutor in the Lublin District. The Committee finally notes the Government's statement that all the above cases will remain in the "area of interest" of the Common Courts Department of the Ministry of Justice and have been covered by the administrative supervision of the chairpersons of the respective courts.

138. The Committee notes with deep regret that this is not the only case brought to it with respect to unjustified delays in the administration of justice and alleged partiality by the Public Prosecutor's Office in cases concerning anti-union discrimination. These wider issues are addressed in the framework of Case No. 2395.

139. Noting with regret that the NSZZ "Solidarnosc" trade union in the SIPMA S.A. enterprise has been dissolved, the Committee requests the Government to intercede with the parties with a view to improving the industrial relations climate between the enterprise and the NSZZ "Solidarnosc" Inter-Enterprise Organization of the Middle East Region so that the latter may exercise its activities with respect to this enterprise without any interference or discrimination by the employer against its members or delegates. Furthermore, recalling once again that justice delayed is justice denied, the Committee expects that the measures taken by the Government will effectively speed up the judicial proceedings initiated almost three years ago by Zenon Mazus, leader of the NSZZ "Solidarnosc" trade union in the SIPMA S.A. enterprise, for recognition of his dismissal as ineffective. The Committee requests the Government to keep it informed on the above issues as well as the progress of the proceedings concerning the employer's obligation to cooperate with the trade union and the penal charges filed against 19 senior managers of SIPMA S.A. and to provide information with regard to the dispute in the Hetman Limited enterprise.

Cases Nos. 2216 and 2251 (Russian Federation)

140. The Committee examined Case No. 2251 at its March 2004 meeting (see 333rd Report, approved by the Governing Body at its 289th Session, paras. 940-1001) and the effect given to its recommendations in Case No. 2216 at its June 2004 meeting (see 334th Report, approved by the Governing Body at its 290th Session, paras. 47-62). The allegations in both cases concerned the Labour Code and the recommendations of the Committee in this respect can be summarized as follows.

141. The Committee requested the Government to amend sections 31, 26, 45, 410, 412 and 413(3) of the Labour Code so as to bring it into conformity with Conventions Nos. 87 and 98. The Committee further requested the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, but not exercising the authority in the name of the state, enjoy the right to strike. The Committee also requested the Government to provide information on sections 29(1) and 413(1)(b) of the Labour Code, as well on a number of issues related to the exercise of the right to strike and the right to collective bargaining.

142. As concerns the practical application of the right to collective bargaining, the Committee requested the Government to keep it informed of the outcome of the investigation on the alleged violations of the right to collective bargaining of the Ural Trade Union Centre (URALPROFCENTRE) by the administration of the Uralsk Electro-Chemical Enterprises (UECE) as well as of the inquiries into the allegations made by the Tyumen Regional Trade Union Centre (TRTUC) concerning the refusal to establish a unified representative body for collective bargaining purposes at the "Managing Company for Housing Communal Services UG".

143. In its communication of 11 June 2004, the complainant organization in Case No. 2216, the Seafarers Union of Russia (RPSM), alleged the continuing failure of the Government to implement the recommendation of the Committee. The RPSM submitted that it had made several proposals to amend the Labour Code so as to bring it in line with the recommendation of the Committee only to meet the Government's disagreement.

144. In its communication of 1 October 2004, the complainant organization in Case No. 2251, the Russian Labour Confederation (KTR), also alleged the continuing failure of the Government to implement the recommendations of the Committee. The KTR stated that, based on the Committee's recommendations, it had drafted amendments to the Labour Code. However, according to the KTR, the Government rejected the submitted draft amendment law.

145. In its communication of 1 March 2005, the Government stated that on 19 January 2005, the Ministry of Health and Social Development of the Russian Federation (Department of Labour Relations) held a conference with the RPSM and the regional trade union organization Murmansk Trawler Fleet. A decision was made at this conference to set up a joint working group of the Ministry and the RPSM to prepare proposals for the introduction of amendments to the Labour Code concerning protection of the interests of workers on seagoing craft and in aircraft. It was also decided that amendments to the Labour Code should be formulated and then put forward to working groups of the Labour and Social Policy Committee of the State Parliament of the Russian Federation for consideration as potential subjects for legislative initiatives during the spring 2005 session.

146. The Government further made the following comments related to the recommendations for amendments to a number of provisions of national legislation. As concerns the question of taking measures to amend section 45 of the Labour Code and to guarantee the opportunity to conduct collective bargaining at occupational level both in legislation and in practice, the Government indicated that the position of the office of the Attorney-General of the Russian Federation was that this section of the Labour Code did not prevent trade unions from taking part in collective bargaining and contained no provisions inhibiting the rights of trade unions. To the contrary, it actually reinforced the legal position and competence of trade unions that are established on a territorial or sectoral basis. It defined the notion of an agreement, a legal document, establishing general principles for the regulation of social, labour and economic relations, concluded by authorized representatives of workers and employers at federal, regional, sectoral (or intersectoral) and territorial levels.

147. As concerns section 31 of the Labour Code, the Government stated that it could not see the need to amend this section. According to the Government, this section allowed workers, if there was no trade union at an establishment or if a trade union organization did exist but represented fewer than half of the workforce, to delegate the representation of their interests to the trade union organization or to another representative. The existence of another representative could not prevent a trade union from fulfilling its authorized role. The provision granting workers the right to elect a representative was also reinforced by section 29 of the Labour Code.

148. As concerns the question of representation of workers during collective bargaining at the enterprise level by trade unions other than primary trade unions, the Government indicated that the issues relating to the participation of trade unions in collective bargaining and concluding collective agreements were governed not only by the Labour Code but also by other federal Acts - in particular Federal Act No. 10 and Federal Act No. 175-FZ of 23 November 1995 "On the procedure for the settlement of collective labour disputes". According to section 29.2 of the Labour Code, the interests of workers at an establishment with regard to collective bargaining, the conclusion and amendment of collective agreements are represented by a primary trade union organization or by another representative elected by the workforce. Therefore, the Labour Code provided for the possibility to participate in the procedure of conclusion and amendment of agreements and the settlement of collective labour disputes concerning the conclusion and amendment of agreements not only to primary union organizations, but also to other representatives elected by the workers at a particular establishment. Workers may be represented by a trade union or trade union association bodies that were authorized to act as representatives in accordance with their constitutions or by independent public organizations set up at meetings (conferences) of the workers at an establishment, branch or agency and authorized by them (section 2.3 of Federal Act No. 175). Accordingly, higher-level organizations or their associations may also represent the interests of workers at particular establishments (enterprises) in collective bargaining if they have been elected to do so. Section 13 of Federal Act No. 10 reinforces the right of trade unions, trade union associations, primary union organizations and bodies created by them to carry out collective bargaining and conclude accords and collective agreements. Account was taken of the number of members represented by a trade union organization or association to determine its right to conduct collective bargaining and conclude agreements in the name of the workers at federal, sectoral or territorial level. Therefore, according to the Government, no amendments need to be made to current legislation in this area.

149. With regard to the amendment of section 410 of the Labour Code concerning setting a lower level for the quorum required for a vote on strike action, the Government submitted that currently, a workers' meeting was considered valid if no less than two-thirds of the total workforce (or conference delegates) was present. Consequently, a qualified majority was necessary for a decision to be considered lawful. It was the Government's position that the standard under consideration did not contradict international labour standards. In particular, States parties to the International Covenant on Economic, Social and Cultural Rights were obliged to ensure the right to strike, provided that it was exercised in conformity with their laws (Article 8.1(d)).

150. The Government further submitted that the complainants' position with regard to the restriction on the right to strike imposed on certain categories of workers (section 413 of the Labour Code) seemed ill-founded. In accordance with a ruling of the Constitutional Court of the Russian Federation dated 17 May 1995, the regulation of the right to strike must achieve the necessary balance between the protection of occupational interests and consideration of the public interest, which can be harmed by strike action and which the employer was obliged to guarantee. The possibility of restricting the right to strike for certain categories of worker in consideration of the nature of their work and the possible consequences of a work stoppage by them directly flowed from the provisions of article 17.3 of the Constitution of the Russian Federation, which stipulated that the rights and freedoms of others must not be violated in the exercise of human and civil rights and freedoms, and from article 55.3 of the Constitution of the Russian Federation, in accordance with which, human and civil rights and freedoms may be restricted by federal legislation only in so far as this was necessary to protect fundamental aspects of the Constitutional order, the moral well-being, health, rights or lawful interests of other persons, the defence of the country or the security of the State. In this way, the boundaries for any potential restriction were set out for the legislator by the Constitution. Neither, according to the Government, did the restriction of the right to strike contradict universally accepted principles or standards of labour legislation. The provisions of the International Covenant on Economic, Social and Cultural Rights state that prohibition of a strike action is permissible in relation to persons in the armed forces, the police or the administration of the State (Article 8.2). Restrictions can be made for other persons if necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others (Article 8.1(c)). Nevertheless, while instruments of international human rights law leave it to national legislation to regulate the right to strike, this national legislation must not impose restrictions that go beyond the boundaries set out by these international instruments.

151. In its communication of 25 May 2005, the Government stated that a working group, created by the Ministry of Health and Social Development and the RPSM, submitted to the Commission on Regulations of Social and Labour Relations its proposals to amend sections 29(3), 31(1), 37(3-6), 45(7), 372(1), 399(2) and 410(1) of the Labour Code. The Government indicated that a working group of the said Commission rejected the draft amendments. The Government further indicated that the Federation of Independent Trade Unions of Russia (FNPR) was also opposed to the draft amendments. Furthermore, a tripartite working group of the Labour and Social Policy Committee of the State Parliament of the Russian Federation had also recommended to reject the draft amendments. The Government stated that the specifics of these decisions were attached to its communication. However, this attachment was not received.

152. The Committee notes the Government's reply concerning various provisions of the Labour Code. As regards section 45, the Committee must once again emphasize that legislation should not constitute an obstacle to collective bargaining at the occupational or professional level. It therefore once again requests the Government to take all the necessary measures, including the amendment of sections 26 and 45 of the Labour Code, so as to ensure both in law and in practice that collective bargaining may be conducted at occupational or professional level. While taking into account the Government's explanation concerning section 31 of the Labour Code, the Committee once again refers to the Collective Agreements Recommendation, 1951 (No. 91), which stresses the role of trade union organizations as one of the parties in collective bargaining and refers to representatives of non-unionized workers only when no trade union organization exists at the enterprise. A provision which permits collective bargaining with other workers' representatives, bypassing trade union existing at the enterprise does not promote collective bargaining. The Committee therefore once again requests the Government to amend its legislation so as to ensure the application of the abovementioned principle and to keep it informed in this respect.

153. As concerns the quorum required for a strike ballot pursuant to section 410 of the Labour Code, while noting the Government's reference to the already existing quorum for a trade union conference, the Committee recalls that the observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 511). Therefore, the Committee once again requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot. The Committee notes the information provided by the Government in respect of the restriction on the right to strike imposed on certain categories of workers. The Committee recalls that, as concerns the restrictions imposed on the right to strike, it had previously requested the Government: (1) to indicate the enterprises and services it qualified as "directly servicing highly hazardous kinds of production or equipment" where the right to strike was prohibited (section 413(1)(b) of the Labour Code); and (2) to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, but not exercising the authority in the name of the State, enjoyed the right to strike. Noting that the Government has not specified the enterprises and services referred to in section 413(b) of the Code, the Committee would reiterate its request in this regard. The Committee further refers to Case No. 2244 where it noted new Federal Act No. 17-FZ of 10 January 2003 on rail transport and requested the Government to amend section 26 of that Act which provided that a strike by the workers of railways in services related to the traffic, shunting, service to passengers, freight was illegal and prohibited. The Committee once again recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the state; (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); and (3) in the event of an acute national emergency (see Digest, op. cit., paras. 526 and 527). The Committee requests the Government to take the necessary measures so as to bring its legislation into conformity with the above principles.

154. Noting that the details on the decisions of various working groups as well as of the FNPR to reject the draft amendments to the Labour Code were not submitted by the Government, the Committee requests the Government to transmit this information to the Committee of Experts on the Application of Conventions and Recommendations to which it refers the legislative aspects of these cases in respect of the application of Conventions Nos. 87 and 98, ratified by the Russian Federation.

155. Noting that the Government's reply was limited to the legislative aspects of the cases, the Committee further requests the Government to provide information on the following recommendations:

- The Committee requests the Government to keep it informed of the outcome of the investigation on the alleged violations of trade union rights of the URALPROFCENTRE by the administration of the UECE.

- The Committee requests the Government to initiate the relevant inquiries into the allegations made by the TRTUC concerning the refusal to establish a unified representative body for collective bargaining purposes at the "Managing Company for Housing Communal Services UG".

- In the light of the complainant's allegation to the effect that in practice, the strike is often postponed or declared illegal, the Committee requests the Government to provide relevant information, including statistical information, on how the right to strike is exercised in practice.

Case No. 2171 (Sweden)

156. At its November 2004 session, the Committee examined this case, which concerns a statutory amendment enabling workers to remain employed until the age of 67 and prohibiting negotiated clauses on compulsory early retirement. The Committee referred to its extensive analysis of the fundamental issues in its initial examination on the merits of the case (330th Report, paras. 1010-1053) and reiterated its previous requests that the Government take remedial measures so that agreements already negotiated on compulsory retirement age shall continue to produce all their effects until their expiry dates, including after 31 December 2002, and that it should resume thorough consultations on these issues, with a view to finding a negotiated solution which would be mutually acceptable to all parties concerned, in conformity with freedom of association principles. The Committee also requested the Government to keep it informed of developments in this matter, and of the results of meetings with bargaining partners, including those which the Government states it intends to initiate in the near future (see 335th Report, para. 183).

157. In a communication dated 16 February 2005, the Government stated that the Minister of Employment intended to resume contacts with the social partners. The Ministry has now continued these consultations, which were followed on 2 February 2005 by a meeting between the Minister and the complainant organizations (Swedish Trade Union Confederation and Swedish Confederation of Professional Employees). The Government stated that it expected that an agreed solution could be reached in the future, but that discussions had to continue.

158. The Committee notes this information. Pointing out that the complaint was filed in November 2001, the Committee expects its recommendations on remedial measures will be acted upon and hopes that a negotiated solution may be found in the near future. The Committee requests the Government to keep it informed of developments in this matter, including on the results of any meetings held with social partners.

Case No. 2125 (Thailand)

159. The Committee last examined this case at its March 2004 session (see 333rd Report, paras. 138-141). On that occasion, the Committee regretted that for the second time the Government, considering that it was a matter to be dealt with by the national courts, had not taken any steps to ensure that the 21 employees of the ITV-Shin Corporation were reinstated. The Committee noted that, by not taking the required steps, the Government allowed acts of anti-union discrimination to have prolonged, if not irreversible, effects on the workers concerned and thus was not only in clear infringement of the principles of freedom of association, but also rendered the Thai statutory prohibition against anti-union discrimination ineffective. The Committee therefore firmly requested the Government to put an end to such a situation and to take, without delay, active steps to ensure the reinstatement of the 21 employees dismissed on account of their trade union activities.

160. In a communication dated 30 November 2004, the complainant stated that in the past four years, the Labour Relations Committee, the ILO and the Labour Court have all reached decisions in favour of the reinstatement of the 21 dismissed workers. The complainant indicated that the company's appeal to the Supreme Court has been pending for two years which, in the view of the workers, is an excessive delay constituting a denial of justice where the Government of Thailand has failed to protect the workers whose rights have been violated.

161. In a communication dated 1 February 2005, the Government stated that it was truly aware that the prevention of all acts of anti-union discrimination in the country was its responsibility. The Government stated that, according to section 125 of the Labour Relations Act, 1975, and the Act concerning the Establishment of Labour Court and Labour Court Procedures 1979, ITV Corporation Ltd. had the right to appeal against the order of the Labour Relations Committee to the Central Labour Court and the Supreme Court and the case is presently under consideration by the Supreme Court. The Government indicated that the Ministry of Labour has informed the Supreme Court to take note of the Committee's recommendation.

162. In its communication of 1 April 2005, the Government transmitted the judgement of the Supreme Court in the case of the ITV-Shin Corporation Limited. The Supreme Court ordered the ITV-Shin Corporation Limited to reinstate all 21 newsroom staff it had dismissed since February 2001. The Supreme Court found the appeal of the ITV-Shin Corporation groundless and its orders dismissing the 21 staff unlawful, upholding the Labour Court's order for the Corporation to reinstate the 21 journalists and pay damages equivalent to their wages owed to them from the day of their dismissal.

163. The Committee notes this information with satisfaction.

Case No. 1952 (Venezuela)

164. At its March 2004 meeting, the Committee recalled that firefighters (even if they are considered civil servants) must enjoy the guarantees provided for in Conventions Nos. 87 and 98, which have been ratified by Venezuela, and requested the Government to take measures to this end and, more generally, to conduct negotiations with the complainants to find a solution to the problems posed in various localities (see 333rd Report, para. 160).

165. In its communication of 7 March 2005, the Government states that the National Trade Union Association of Professional Firefighters, Auxiliaries and Related Workers of Venezuela (ASINBOMPROVEN) has presented a draft collective agreement which will be discussed with the Mayor's office. The Government also provides a copy of the ruling given by the Constitutional Division of the Supreme Court of Justice which upheld the claim of invalidity lodged by representatives of the trade union regarding article 50(d), in fine, of the Decree concerning the Caracas Metropolitan District Fire Brigade. The Constitutional Division annulled actions that had been taken on the basis of the provision in question, which prevented members of the Eastern Joint Fire Brigade from being considered in the assessment process (to select employees on the basis of their qualifications and merits for entry into the Caracas Metropolitan District Fire Brigade) if they had previously been excluded from other fire brigades for disciplinary reasons.

166. The Committee takes note of this information.

Case No. 2088 (Venezuela)

167. The Committee last examined this case at its meeting in March 2004 and on that occasion requested the Government to intercede with the parties with a view to obtaining the reinstatement of trade union officials, Oscar Rafael Romero Machado and Isidro Ríos, and to keep it informed in this respect (see 333rd Report, para. 1036, approved by the Governing Body at its 289th Session (March 2004)).

168. The Latin American Central of Workers (CLAT) in its communication of 25 May 2004 states that the trade union officials, María de la Esperanza Hermida and Luis Martín Galvis, have not been notified of the closure of disciplinary proceedings instigated against them because of the strike in 1999, and that indeed the employer's anti-union moves in the courts continued in 2001. The Ministry of Labour suspended talks on a second collective agreement with a view to combining the text presented by the National Organized Single Trade Union of Court and Council of the Judicature Workers (SUONTRAJ) with that presented by the recently established organization SINTRAT. The CLAT also claims that the right of assembly and of unrestricted access to the headquarters of SUONTRAJ was blatantly violated between 1999 and 2004, despite the fact that the requirement of prior notice to ensure the safety of persons on these premises was satisfied. The union SUONTRAJ applied to the Labour Inspectorate of Maracaibo, in Zulia State, to refer the application for the reinstatement of trade union official Isidro Ríos and payment of his wage arrears, but there has been no ruling on this by the Ministry of Labour. Lastly, the CLAT claims that the arguments put forward by the Government concerning union official Oscar Romero are dubious, and the administrative labour authority which, more than four years ago ordered his reinstatement, now claims not to recognize his trade union immunity.

169. The SUONTRAJ, in its communication of 10 May 2004, states that the union officials, María de la Esperanza Hermida and Luis Martín Galvis, have not been notified of the closure of disciplinary proceedings against them following the strike in 1999, and that indeed new proceedings began before the Labour Inspectorate in response to an application to have them dismissed as a result of the strike carried out on 31 July and 14 August 2001. The union official, Pablo Emilio Salgado Cuevas, was also included in these proceedings. The SUONTRAJ also alleges that the Ministry of Labour suspended talks on a second collective agreement, ostensibly in order to combine the text with the one presented in November 2003 by the recently established organization SINTRAT. Referring to the Government's statements in the previous examination of the case, SUONTRAJ claims that the union official Oscar Rafael Romero Machado was detained arbitrarily on 17 February 2000. On 2 March 2004, he was detained again (on that occasion for 36 hours) while on union business. The union also complains of anti-union practices specifically against Ms. Marjoris Méndez, who was given a warning on 26 February 2006 for organizing a trade union meeting. In March 2003, threats were made against the job security of court workers of the Miranda State criminal circuit courts, despite the fact that a list of demands had been presented with a view to discussions on the second collective agreement. The SUONTRAJ adds that Judge Hilda Zamora threatened the union official, Mario Naspe, with death for having interceded to safeguard the employment security and the personal and physical safety of a number of officials who belonged to SUONTRAJ.

170. The Government, in its communications of 5 November and 27 December 2004 and 18 and 23 February 2005, states that the Executive Directorate of the Judiciary (Supreme Court of Justice) agreed to the discontinuation of the dismissal proceedings initiated by the Labour Inspectorate of the Capital District against María de la Esperanza Hermida, Luis Martín Galvis and Pablo Emilo Salgado Cuevas.

171. As regards the situation of the official, Marjoris Méndez, the judicial authorities quashed the appeal and upheld the warning on the grounds that the official had acted rudely and arrogantly and displayed a lack of respect towards her superior, mocking her and calling for "applause for this great president of ours", according to statements (sent by the Government in an attachment) by presiding Judge Mirla Malave Saez of the Criminal Circuit Court in Delta Amacuro State. These documents show that the penalty was not imposed because the official in question had organized a trade union meeting.

172. As regards the suspension of talks on the draft collective agreement, the Government states that negotiations on working conditions of officials of the Executive Directorate of the Judiciary began again on 4 June 2004, and indicates that the parties have concluded a new collective agreement, according to an official document dated 22 December 2004 (sent as an attachment).

173. As regards the allegation that judiciary workers of Miranda State criminal circuit courts were threatened with the loss of their employment security, despite the fact that a list of demands had been presented with a view to discussions on the second collective labour agreement, the Government states that judges cannot in any way threaten judiciary workers of a given circuit with dismissal, as the law gives them no authority whatsoever to impose any disciplinary sanction, let alone sanctions that would result in indefinite removal of a worker from his or her post. The Government sends documents originating from the complainant union which show that the alleged acts are not linked to the exercise of trade union rights but relate to a security problem which, according to the security service, prevented some individuals from entering the Palace of Justice and led to an altercation.

174. As regards the removal of Isidro Ríos from his post, the Government reiterates what it has stated on previous occasions and indicates that, if Mr. Ríos considered that the disciplinary proceedings against him were flawed or in any way infringed his legal or constitutional rights, he could have appealed to the courts to overturn the administrative decision and obtain suitable compensation. Mr. Ríos did not, however, apply to the competent court with a view to obtaining such a ruling and being reinstated.

175. As regards the complaint concerning the trade unionist, Oscar Romero Machado, the Government rejects the complainants' account of events leading to his dismissal (in 1999), and maintains that Mr. Romero was subsequently sentenced by the court on 2 March 2004 to 36 hours' detention for his disrespectful and insulting behaviour towards Judges Ever Contreras and Iván Harting - shouting, speaking in an arrogant manner, accusing the judges of corruption and abuses of power, using obscene language, making threatening gestures at Dr. Iván Harting, failing even to show proper respect to the security and National Guard personnel, and threatening to strike Judge Harting when he came out of his chambers, according to documents from the Tenth Court of First Instance of the Caracas civil court circuit (a copy is provided by the Government). Mr. Romero did not apply to the courts for reinstatement.

176. As regards the threats by Judge Hilda Zamora against the trade union official Mario Naspe, the Government states that no stoppage ever took place for any reason, let alone for alleged verbal abuse or threats against job security, as the members of SUONTRAJ claim.

177. The Committee takes note of the Government's observations, according to which:

(a) the authorities have abandoned the dismissal proceedings initiated by the Labour Inspectorate of the Capital District against María de la Esperanza Hermida, Luis Martín Galvis and Pablo Emilio Salgado Cuevas;

(b) talks on conditions of employment of employees of the Executive Directorate of the Judiciary began again on 4 June 2004 and the parties concluded a new collective agreement;

(c) the Government rejects the allegation that threats were made against workers' employment security during the collective bargaining;

(d) the trade unionist, Oscar Romero Machado, was held under arrest for a period of 36 hours by order of the judicial authority on 2 March 2004, for disrespectful and insulting behaviour described in detail in the Government's reply. The trade unionists, Isidro Ríos and Oscar Romero Machado, did not appeal to the competent judicial authority against the decisions to dismiss them and obtain reinstatement;

(e) the Government sends documents on the trade unionist, Marjoris Méndez, employed by the judicial authority, specifically regarding the reasons for the warning for rude, arrogant and sarcastic behaviour towards a superior in the presence of others, and categorically denies that the warning had anything to do with the fact that she had organized a trade union meeting.

178. As regards the death threats allegedly made against the trade union official, Mario Naspe, by Judge Hilda Zamora, when interceding to safeguard the employment security stability and physical security of a number of members of the complainant organization, the Committee notes that the Government in its reply does not refer to the death threats but to threats against employment stability. The Committee requests the Government to send observations relating specifically to alleged death threats.

179. As regards the dismissal of Mr. Ríos and Mr. Romero, the Committee notes that the Government reiterates its previous observations and adds that they did not appeal to the competent judicial authority to overturn the decisions to dismiss them and obtain reinstatement. The Committee regrets that the Government has not interceded with the parties to bring about the reinstatement of the trade union officials, Rafael Romero Machado and Isidro Ríos, as it had requested in its previous examination of the case, and reiterates that recommendation.

180. Finally, as regards the following cases, the Committee requests the governments concerned to keep it informed of any developments relating to these cases.

Case / Last examination on the merits / Last follow-up examination

1937 (Zimbabwe) / March 1998 / March 2005

1965 (Panama) / March 2001 / March 2005

1970 (Guatemala) / November 2000 / March 2005

1991 (Japan) / November 2000 / June 2004

1996 (Uganda) / June 1999 / March 2005

2027 (Zimbabwe) / March 2000 / March 2005

2046 (Colombia) / March 2005 / -

2047 (Bulgaria) / March 2000 / March 2005

2084 (Costa Rica) / March 2001 / March 2005

2086 (Paraguay) / June 2002 / November 2003

2087 (Uruguay) / March 2005 / -

2104 (Costa Rica) / March 2002 / March 2005

2114 (Japan) / June 2002 / November 2002

2126 (Turkey) / March 2002 / June 2004

2132 (Madagascar) / June 2003 / November 2004

2133 (The former Yugoslav Republic of Macedonia) / November 2002 / November 2004

2141 (Chile) / March 2002 / March 2005

2146 (Serbia and Montenegro) / March 2002 / November 2004

2148 (Togo) / March 2002 / March 2005

2156 (Brazil) / March 2002 / November 2004

2160 (Venezuela) / June 2002 / March 2005

2166 (Canada) / March 2003 / March 2004

2173 (Canada) / March 2003 / March 2004

2175 (Morocco) / November 2002 / November 2004

2180 (Canada) / March 2003 / March 2004

2187 (Guyana) / November 2003 / November 2004

2192 (Togo) / March 2003 / March 2005

2199 (Russian Federation) / June 2003 / June 2004

2200 (Turkey) / June 2004 / -

2214 (El Salvador) / March 2005 / -

2226 (Colombia) / November 2004 / -

2227 (United States) / November 2003 / November 2004

2233 (France) / November 2003 / March 2005

2236 (Indonesia) / November 2004 / March 2005

2242 (Pakistan) / November 2003 / -

2253 (China, Special Administrative Region of Hong Kong) / June 2004 / -

2255 (Sri Lanka) / November 2003 / March 2005

2257 (Canada) / November 2004 / -

2266 (Lithuania) / June 2004 / November 2004

2271 (Uruguay) / June 2004 / March 2005

2272 (Costa Rica) / March 2004 / March 2005

2273 (Pakistan) / November 2004 / -

2276 (Burundi) / November 2004 / -

2280 (Uruguay) / June 2004 / -

2285 (Peru) / November 2004 / -

2288 (Niger) / March 2004 / March 2005

2303 (Turkey) / November 2004 / -

2304 (Japan) / November 2004 / -

2316 (Fiji) / June 2004 / March 2005

2324 (Canada) / March 2005 / -

2328 (Zimbabwe) / March 2005 / -

2336 (Indonesia) / March 2005 / -

2338 (Mexico) / March 2005 / -

2340 (Nepal) / March 2005 / -

2344 (Argentina) / March 2005 / -

2347 (Mexico) / March 2005 / -

2381 (Lithuania) / March 2005 / -

2383 (United Kingdom) / March 2005 / -

181. The Committee hopes that these governments will quickly provide the information requested.

182. In addition, the Committee has just received information concerning the follow-up of Cases Nos. 1890 (India), 1916 (Colombia), 2038 (Ukraine), 2109 (Morocco), 2139 (Japan), 2141 (Chile), 2151 (Colombia), 2153 (Algeria), 2158 (India), 2164 (Morocco), 2172 (Chile), 2186 (China, Special Administrative Region of Hong Kong), 2228 (India), 2234 (Mexico), 2237 (Colombia), 2239 (Colombia), 2252 (Philippines), 2256 (Argentina), 2274 (Nicaragua), 2281 (Mauritius), 2283 (Argentina) and 2304 (Japan) which it will examine at its next meeting.