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 3, 4 and 11 November 2005, under the chairmanship of Professor Paul van der Heijden.

2. The members of Argentinian, Australian, Chilean, Guatemalan and Bolivarian Republic of Venezuelan nationality were not present during the examination of the cases relating to Argentina (Cases Nos. 2302, 2373 and 2377), Australia (Case No. 2326), Chile (Cases Nos. 2352 and 2392), Guatemala (Cases Nos. 2298, 2341 and 2361), Pakistan (Case No. 2399) and the Bolivarian Republic of Venezuela (article 26 complaint), respectively.

3. Currently, there are 128 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 40 cases on the merits, reaching definitive conclusions in 28 cases and interim conclusions in 12 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 Case No. 2374 (Cambodia) 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. 2425 (Burundi), 2426 (Burundi), 2427 (Brazil), 2430 (Canada), 2432 (Nigeria), 2434 (Colombia), 2436 (Denmark), 2437 (United Kingdom), 2438 (Argentina), 2440 (Argentina), 2442 (Mexico), 2443 (Cambodia), 2444 (Mexico), 2445 (Guatemala), 2446 (Mexico), 2447 (Malta), 2448 (Colombia), 2449 (Eritrea), 2450 (Djibouti) and 2451 (Indonesia), 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. 2262 (Cambodia), 2265 (Switzerland), 2313 (Zimbabwe), 2318 (Cambodia), 2321 (Haiti), 2323 (Islamic Republic of Iran), 2337 (Chile), 2365 (Zimbabwe), 2408 (Cape Verde), 2420 (Argentina), 2421 (Guatemala) and 2422 (Bolivarian Republic of Venezuela).

Observations requested from governments and complainants

7. The Committee is still awaiting observations or information from the government and the complainant in the following case: No. 2292 (United States).

Partial information received from governments

8. In Cases Nos. 2177 (Japan), 2183 (Japan), 2203 (Guatemala), 2254 (Bolivarian Republic of Venezuela), 2279 (Peru), 2295 (Guatemala), 2355 (Colombia), 2372 (Panama), 2388 (Ukraine), 2390 (Guatemala), 2400 (Peru), 2423 (El Salvador) and 2445 (Guatemala), 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. 1865 (Republic of Korea), 2241 (Guatemala), 2259 (Guatemala), 2268 (Myanmar), 2317 (Republic of Moldova), 2319 (Japan), 2339 (Guatemala), 2351 (Turkey), 2354 (Nicaragua), 2356 (Colombia), 2362 (Colombia), 2368 (El Salvador), 2380 (Sri Lanka), 2393 (Mexico), 2396 (El Salvador), 2405 (Canada), 2406 (South Africa), 2409 (Costa Rica), 2411 (Bolivarian Republic of Venezuela), 2412 (Nepal), 2413 (Guatemala), 2414 (Argentina), 2415 (Serbia and Montenegro), 2416 (Morocco), 2417 (Argentina), 2418 (El Salvador), 2419 (Sri Lanka), 2424 (Colombia), 2428 (Bolivarian Republic of Venezuela), 2429 (Niger), 2431 (Equatorial Guinea), 2433 (Bahrain), 2435 (El Salvador), 2439 (Cameroon) and 2441 (Indonesia), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

10. The Committee took note of the Government's reply in Case No. 1787 (Colombia), which it intended to examine at its next meeting, as well as of the oral report provided by the President of the Committee on Freedom of Association on the high-level tripartite visit that took place in Colombia at the invitation of the Government, from 24 to 29 October 2005, with the participation of the Worker and Employer Vice-Chairpersons of the Committee on the Application of Standards. The visit centred around the question of impunity, in particular in the framework of Case No. 1787 and matters relating more generally to labour relations in the country. At the end of their visit, the members made a number of recommendations, which were set out in a public statement made in Bogotá on 29 October 2005. The President would provide a full report on this visit to the Committee for its consideration, when examining Case No. 1787 at its next meeting.

Urgent appeals

11. As regards Cases Nos. 2270 (Uruguay), 2314 (Canada), 2333 (Canada), 2394 (Nicaragua) and 2397 (Guatemala), 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.

Receivability of complaints

12. The Committee deemed irreceivable a communication dated 10 January 2005 by the National Union of Press Workers of Venezuela (SNTP) alleging violations of freedom of association in Venezuela by the Government of France.

13. The Government of Mexico challenged the receivability of the matters raised in a communication dated 8 August 2005 by the Revolutionary Confederation of Workers and Peasants (CROC). The Committee will examine this question at its meeting in March 2006.

Closure of cases

14. The Committee notes that despite its requests to the complainant on four separate occasions for elements supporting the receivability of its complaint in Case No. 2322 (Bolivarian Republic of Venezuela), no information has been provided. The complainant in Case No. 2379 (Netherlands) has indicated that the one remaining point for which it had requested that the complaint be suspended has now been resolved. The Committee therefore considers that these cases do not call for further examination.

Transmission of cases to the Committee of Experts

15. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Fiji (Case No. 2316), Pakistan (Case No. 2229) and Ukraine (Case No. 2038).

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

Case No. 2256 (Argentina)

16. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 20-22). On that occasion, on examining allegations regarding the failure of the Directorate General of Schools (DGE) of the Province of Mendoza since 1999 to appoint its representatives to continue to negotiate a collective agreement for the sector with the United Union of Education Workers of Mendoza (SUTE), the Committee expressed the hope that a collective agreement would soon be concluded for the sector. Moreover, the Committee requested the Government to keep it informed of the final decision handed down by the judicial authority with respect to the participation by a new trade union organization, the Union of Argentine Teachers (UDA), in the renegotiation of Joint Accord No. 1 of 1999 concluded between the SUTE and the DGE.

17. In a communication dated 18 April 2005, the Government stated that on 22 December 2004, the DGE and SUTE concluded a collective agreement on the wage structure for teachers and union contributions. This agreement was endorsed by the Executive Authority in Decree No. 955/04. The Government also stated that there was still no decision with regard to the action for the protection of constitutional rights presented by the UDA to the First District Third Civil Court of the Province of Mendoza.

18. The Committee notes with interest the agreement concluded between the DGE and the trade union organization SUTE. The Committee requests the Government to keep it informed of the final decision on the action for the protection of constitutional rights presented by the UDA.

Case No. 2283 (Argentina)

19. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 209-227) and on that occasion made the following recommendations:

The Committee requests the Government to keep it informed of the outcome of any judicial action initiated by the dismissed or suspended trade unionists mentioned in the complaint in the Alberdi S.A. (COMODIN Supermarkets) enterprise and expects that, if the dismissals and suspension of these trade unionists are found to be anti-union in nature, they will be reinstated without loss of pay and without delay and, if reinstatement is not possible, that they will be adequately compensated.

The Committee firmly expects that, as soon as the Si.Tra.M. trade union organization has complied with the necessary legal requirements, the administrative authority will grant it trade union registration as it requested. The Committee requests the Government to keep it informed in this respect.

20. In a communication dated 18 April 2005, the Government referred to the status of the judicial actions undertaken by the trade unionists dismissed by the Alberdi S.A. enterprise mentioned in the complaint. Specifically, it states that, of the dismissed workers mentioned, Mr. Andrés Ricardo Guanuco and Mr. Diego Ramir Yomar made an application for the protection of constitutional rights to the First Chamber of the Labour Court of the City of San Salvador de Jujuy. This application was rejected by the Court, which led to their filing an appeal for cassation and unconstitutionality. The latter was favourably decided by the Higher Court of Justice, which ordered the First Chamber of the Labour Court to have jurisdiction over the case. Currently, the proceedings are awaiting decision. Moreover, it states that Mr. Ricardo Gramajo filed a claim for unfair dismissal and trade union protection, from which the parties have been summoned to a conciliation hearing that has not yet taken place. There is currently no record of any judicial action with regard to the worker Mr. Ezequiel Eduardo López (suspended).

21. The Committee notes this information. The Committee hopes that the judicial authorities will hand down their decision soon and requests the Government to keep it informed of the outcome of the legal proceedings under way. Moreover, the Committee requests the Government to keep it informed of the situation with regard to the trade union registration of the trade union organization Si.Tra.M.

Case No. 2344 (Argentina)

22. The Committee examined this case relating to acts of anti-union discrimination against the complainant organization's assistant secretary at its March 2005 meeting (see 336th Report, paras. 179-193). On that occasion it made the following recommendation:

Observing that: (1) the judicial authority rejected the National Institute of Social Services for Persons Receiving Retirement Benefits and Pensions' application for the lifting of trade union protection and the authorization of dismissal against trade union official Mr. Praino, in particular noting in the judgment acts demonstrating anti-union intentions on the part of the aforementioned Institute; and (2) the fact that the Institute appealed against the said ruling, the Committee requests the Government to forward a copy of the decision regarding the appeal as soon as it is rendered.

23. In a communication dated 9 June 2005, the complainant organization, the National Coordination of State Workers (CONATE) refers to the lawsuit "National Institute of Social Services for Persons Receiving Retirement Benefits and Pensions v Praino Raúl, Lifting of Trade Union Protection" currently before the Federal Court of the Republic of Argentina, and states that the decision of the Court of Second Instance confirms that of the Federal Court of First Instance which decided in favour of Raúl Praina, noting anti-union discrimination and treatment against the assistant secretary of CONATE. The complainant organization states that, with the decision by the Court of Appeal not only to uphold the decision to reject the withdrawal of trade union privileges and subsequent dismissal of Mr. Praino, but also to uphold the reasons on which this decision was based, it is imperative that the Committee express an opinion on the matter, calling attention to the anti-union conduct shown, and urge the Argentinean Government to take steps to prevent such conduct occurring in situations similar to those that gave rise to the complaint.

24. In communications dated 14 July and October 2005, the Government states that it has been informed that the decision of the Second Instance of the Federal Court of Appeal of the City of Rosario - Province of Santa Fe - upheld the decision of the Court of First Instance and that the plaintiff has filed the appropriate extraordinary appeal.

25. The Committee recalls that no person should be discriminated against in his or her employment as a result of his or her legitimate trade union activities or membership, whether present or past. The Committee notes this information and, in particular, that the judicial authority of the second instance upheld the decision that rejected the request for the lifting of trade union privileges and authorization for dismissal filed by the National Institute of Social Services for Persons Receiving Retirement Benefits and Pensions against the trade union official Praino Raúl. In this respect, the Committee requests the Government to keep it informed of. the outcome of the extraordinary appeal filed in relation to the judicial decision of the Court of Second Instance.

Case No. 2370 (Argentina)

26. The Committee examined this case at its March 2005 meeting and on that occasion made the following recommendations (see 336th Report, para. 232):

While regretting the significant delay in initiating collective negotiations, the Committee takes due note of the Government's statement that the collective negotiations requested by the UPCN have now begun. The Committee expects that the negotiations will lead to the resolution of the issues at hand in the very near future.

As to the cases referred to by the UPCN with regard to which the State had supposedly taken unilateral decisions, which should have been the object of collective bargaining, the Committee trusts that the Government and the UPCN will be able to find a solution to these problems, within the framework of the Standing Committee for Labour Relations envisaged in article 67 of collective labour agreement No. 66/99 of 30 March 2004.

With regard to the allegation related to the possible unilateral decision by the State to introduce a wage increase of 150 pesos for public sector workers earning less than 1,000 pesos, the Committee expects that any decision relative to wage changes in the public sector will be subject to prior consultation with the workers' organizations concerned.

27. In its communication of 10 August 2005, the Government refers to the Committee's recommendation in which it stated that it trusted that wage increases in the public sector will be subject to prior consultation with the workers' organizations concerned and had attached Act No. 875 of 20 July 2005, which approves the Act of Agreement between representatives of the State and the trade union organizations UPCN and ATE, under which, in the framework of equality of collective bargaining in the public sector, a decision was reached jointly on wage increases for workers in the public administration.

28. The Committee notes this information with interest.

Case No. 2047 (Bulgaria)

29. The Committee last examined this case at its March 2005 meeting when it noted with interest the efforts made by the Government to clarify to the Association of Democratic Trade Unions (ADS) and the National Trade Union (NTU) the procedure that may be followed to request recognition of their representative status at the national level, and expressed the hope that the ADS and the NTU would provide the necessary documentation in accordance with the appropriate procedure should they still wish to be considered for recognition of representativeness at the national level. The Committee requested the Government to keep it informed of any developments in this respect and further requested the Government to keep it informed of the outcome of the appeal made by the Confederation of Labour "Podkrepa" and the Confederation of Independent Trade Unions in Bulgaria (CITUB) in respect of the recognition of the Association of Trade Unions to "Promyana" Alliance (hereinafter the Promyana Alliance) and to furnish a copy of the Supreme Administrative Court judgement (see 336th Report, approved by the Governing Body at its 292nd Session, paras. 14-18).

30. In a communication dated 30 May 2005, the Government indicated with regard to the appeal lodged by the Confederation of Labour "Podkrepa" in respect of the recognition of the Promyana Alliance, that by Ruling No. 418 passed on 14 January 2005, the Supreme Administrative Court declared the complaint inadmissible (ruling attached). Pursuant to an appeal by the Confederation of Labour "Podkrepa", the Supreme Administrative Court issued Ruling No. 1699 on 23 February 2005 by which it affirmed Ruling No. 418 of 14 January 2005. Ruling No. 1699 was final and could not be appealed. Thus, the Promyana Alliance remained a representative workers' organization at the national level. Finally, the Government indicated that the ADS and the NTU had not requested recognition as representative at the national level despite the fact that article 36 of the Labour Code and the ordinance issued on the basis of the Labour Code enabled every employers' and workers' organizations to apply for recognition as representative at national level.

31. The Committee takes note of this information.

Case No. 2182 (Canada/Ontario)

32. The Committee last examined this case, which concerns legislative provisions that encouraged decertification of workers' organizations, at its May-June 2005 meeting, where it noted with interest that a legislative amendment (Bill 144) would repeal the impugned provisions. It requested the Government to keep it informed of developments and to provide a copy of the Act once adopted (see 337th Report, paras. 27-29).

33. In a communication of 6 July 2005, the Government of Ontario informed the Committee that Bill 144 was passed and given Royal Assent on 13 June 2005 (C. 15, Statutes of Ontario, 2005, attached to the Government's communication). In addition to repealing the requirement to post and distribute information about trade union decertification, the Act: eliminates the requirement that unions disclose the name, salary and benefits of all directors, officers and employees earning more than a certain amount a year; it also restores the power of the Ontario Labour Relations Board (OLRB) to remedy serious labour relations conduct during organizing drives, and to make interim orders regarding reinstatement of workers alleging that they have been fired or disciplined for exercising their rights during a certification campaign.

34. The Committee notes this information with satisfaction.

Case No. 2305 (Canada/Ontario)

35. The Committee last examined this case at its May-June 2005 session, where it noted with interest from the information provided by the Government that social dialogue had apparently resumed and was being pursued in the education sector. The Committee requested 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 (see 337th Report, para. 32).

36. In a communication dated 6 July 2005, the Government of Ontario states that it continues to work with education stakeholders to bring peace and stability to the sector. According to the Government, there is a changed atmosphere evidenced by the more engaged and frank dialogue between unions and the new Minister of Education. For the first time in the sector's history, there are now approximately 16 four-year collective agreements with teachers, and there have been no strikes during this administration. The Ministry has successfully replaced a confrontational environment with a collaborative one between the Government and teachers.

37. Whilst noting with interest the information provided by the Government in the present case, the Committee cannot but express its concern that a new complaint has been brought in the meantime by the National Union of Public and General Employees (NUPGE, Case No. 2430) in connection with the education sector in Ontario, which does not fully corroborate the Government's vision of the state of industrial relations. The Committee requests the Government to pursue its best efforts to maintain a stable and harmonious labour relations atmosphere in the education sector, and to continue to keep it informed of results achieved at the Education Partnership Table, including as regards the establishment of a voluntary and effective dispute-prevention and resolution mechanism.

Case No. 2141 (Chile)

38. At its March 2005 meeting, the Committee requested the Government to send a copy of the ruling handed down in the criminal proceeding relating to the death of Mr. Luis Lagos and the serious injuries sustained by Mr. Donaldo Zamora during the strike at the FABISA S.A. enterprise in May 2001 (see 336th Report, para. 22).

39. In its communication of 28 April 2005, the Government stated that the Labour Directorate did not have any information regarding the action brought by Mr. Luis Lagos' widow before the 18th Criminal Court of Santiago (No. 1086-3), about which his widow had reported.

40. The Committee recalls that in its previous response the Government had reported the content of the criminal ruling in this case, also indicating the amount of the compensation that was due to the family of Luis Lagos, and it again requests that the Government send the ruling handed down in respect of the aforementioned acts of violence.

Case No. 2172 (Chile)

41. At its March 2004 meeting, the Committee requested the Government to inform it of the decision handed down with regard to the dismissal of seven pilots and to keep it informed of the result of the judicial proceedings for anti-union practices filed against Lan Chile S.A. by a former member of the union (see 333rd Report, para. 319).

42. In its communication dated 28 April 2005, the Government states that the court of first instance rejected the motion for anti-union practices on the basis of prescription and because the former member who had made the claim did not have the legal interest. Also, the court fined the enterprise (80 "unidades tributarias") for not having fully discounted the union dues; this ruling was confirmed by the Court of Appeal of Santiago.

43. The Committee takes note of this information. The Committee again requests the Government to inform it of the decision handed down with regard to the dismissal of seven unionized pilots from the Lan Chile enterprise.

Case No. 2186 (China/Hong Kong Special Administrative Region)

44. The Committee last examined this case, which concerns allegations that Cathay Pacific Airways dismissed the Hong Kong Aircrew Officer's Association (HKAOA) members and officers by reason of their trade union activities, refused to enter into meaningful negotiations, tried to break up the union and committed other acts of intimidation and harassment, at its March 2004 meeting and formulated the following recommendations on which it requested to be kept informed of developments (see 333rd Report, approved by the Governing Body at its 289th Session, para. 362):

(a) The Committee notes with concern that the civil action for unreasonable and unlawful dismissal brought before the High Court by several pilots of Cathay Pacific Airways, has been pending since June 2002 without a date for a hearing having been fixed yet. It therefore requests the Government to take all necessary measures as soon as possible to end the dispute through a negotiated settlement which may be considered by both parties as fair and equitable. In the absence of such settlement, the Committee requests the Government to intercede with the parties with a view to promoting interim measures preventing irreparable damage for the dismissed pilots pending final judgement on this case. It also reiterates its previous request to the Government to communicate the High Court ruling once rendered.

(b) The Committee notes that the Government has been working on a legislative amendment to empower the Labour Tribunal to make an order of reinstatement/re-engagement in cases of unreasonable and unlawful dismissal without the need to secure the employer's consent and requests the Government to keep it informed of developments in this respect.

(c) The Committee requests the Government to take all necessary measures, in consultation with the social partners, so as to consider the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination, given that the generally applicable (criminal and civil) procedures for unjustified and unlawful dismissal do not seem to be sufficiently effective in affording protection against acts of anti-union discrimination, as required by Article 1 of Convention No. 98.

(d) The Committee recalls that it is incumbent on the authorities to ensure the application of Article 2 of Convention No. 98 and therefore requests the Government to take all necessary measures as soon as possible with a view to adopting legislative provisions prohibiting acts of interference in the establishment, functioning and administration of workers' organizations and establishing efficient procedures coupled with sufficiently dissuasive sanctions so as to ensure their implementation in practice.

(e) The Committee expects that relations between HKAOA and Cathay Pacific Airways will improve, and requests the Government to renew its efforts for the effective promotion of bipartite collective bargaining, both in general and between the parties, and to take all necessary measures so as to ensure that negotiations are genuine and meaningful.

45. In a communication dated 11 May 2005, the Government provided information on the above recommendations. In particular, the Government indicated with regard to recommendation (a) above that, when the dispute came to light in 2001, the Labour Department (LD) of the HKSAR Government actively mediated between the two parties to help resolve their differences and made strenuous efforts with a view to bringing the dispute to a negotiated settlement which would be agreeable to both parties. These conciliation efforts did not, however, yield the desired results. After the dismissal of the pilots in July 2001, the LD promptly advised HKAOA of the relevant provisions of the Employment Ordinance (EO) and the channels available for pilots to seek redress should they feel aggrieved. A complaint by nine of the pilots that the termination of their employment constituted a contravention of anti-union discrimination provisions in the EO was promptly investigated. Statements from the pilots and a submission from Cathay Pacific Airways were submitted to the Department of Justice (DoJ), which subsequently advised that there was insufficient evidence to establish an offence under the EO. In 2002, the LD was approached by 21 of the pilots to assist in the filing of claims for civil remedies before the Labour Tribunal. Prompt action was taken in this regard, but the Labour Tribunal ruled that, since civil action had been initiated in the High Court in 2001, the matter should be dealt with by the High Court. The Government added that as some of the dismissed pilots had resorted to civil action to seek legal redress against Cathay Pacific Airways, it remained a decision of the Court to award remedies to the aggrieved party for any damage incurred should the Court find the dismissal unreasonable and unlawful. Given the independence of the judiciary, the HKSAR Government was not in a position to intervene in the judicial process or exert any influence on the parties in litigation. At present, litigation was in progress at the High Court.

46. The Government further indicated, with regard to recommendation (b) above, that the HKSAR Government had been working on a draft amendment bill which sought to empower the LT to make an order for reinstatement/re-engagement in cases of unreasonable and unlawful dismissal (including dismissals on the ground of anti-union discrimination), without the need to secure the employer's consent if the LT considered it appropriate and reasonably practicable. As the bill was rather complex, more time was needed to complete the legal drafting process.

47. The Government added with regard to recommendation (c) above, that the HKSAR Government subscribed fully to the requirement under Article 1 of Convention No. 98 and that adequate protection against acts of anti-union discrimination was guaranteed by the basic law, the Hong Kong Bill of Rights Ordinance and section 21B and Part VIA of the Employment Ordinance. Notwithstanding the existing legislative protection against anti-union discrimination, the HKSAR Government had been working on the abovementioned draft amendment bill concerning reinstatement/re-engagement.

48. With regard to recommendation (d) above, the Government indicated that the HKSAR Government subscribed fully to the requirement under Article 2 of Convention No. 98 to protect workers' and employers' organizations against interference by each other and measures had been put in place to give effect to the Article. In particular, under section 36 of the Trade Unions Ordinance (TUO), all registered trade unions in the HKSAR were required to submit to the Registry of Trade Unions (RTU) their annual audited statements of account on the receipts and payments in the financial year and the assets and liabilities of the unions. Contributions from employers and employers' organizations, if any, must be highlighted in these accounts. Section 37 of the TUO further provided that the account books of a registered trade union should be open to inspection by members of the union and the RTU. Through regular examination of the audited annual statements and accounts books of the unions, the RTU ensured that no employer could gain domination over an employees' organization through the provision of financial support. The RTU also conducted inspection visits to trade unions and employers' organizations to provide advice and assistance on the management of their organizations and to ensure that employees and employers were free from acts of interference by each other in the establishment, functioning or administration of their organizations. The above measures had worked well to give effect to Article 2 of Convention No. 98. There had been no report or complaint from employees' unions, including the HKAOA, about acts of interference from their employers or employers' organizations. The full application of Article 2 would continue to be ensured.

49. The Government indicated, moreover, with regard to the Committee's statement in paragraph 357 of the 333rd Report to the effect that managements could hinder the activities of a trade union as a dismissed trade union leader would have to resign his trade union post by law, that the TUO does not require an officer to resign from his trade union post when he is dismissed by the employer. In particular, under section 17(2) of the TUO, a person who is or has been engaged or employed in a trade, industry or occupation with which the trade union is directly concerned, can be an officer of a trade union. Thus, even when dismissed, the officer should have been engaged in the trade with which the trade union is directly concerned. The employer can in no case make use of the provisions of the TUO to force the resignation of a trade union officer by dismissing him. As such, the relevant legislative provisions are not contrary to Article 2 of Convention No. 98. The rules of some trade unions, including the HKAOA, stipulate that their trade union officers should be voting members of the trade unions. In these cases, a trade union officer who ceases to be a voting member of the trade union after his dismissal would be required to resign from his trade union post. Restrictions of this kind are imposed by the trade unions themselves, and not by the TUO. Indeed, it would be up to the trade unions to modify their own union rules should they see a need to do so.

50. With regard to recommendation (e) above, the Government indicated that the HKAOA and Cathay Pacific Airways had put in place a longstanding, sophisticated and efficient collective bargaining machinery. Although communication between the two parties had ceased for some time after the 2001 dispute, towards the end of 2003 a new executive committee of the HKAOA renewed its dialogue with Cathay Pacific Airways and collective bargaining between the two parties had since achieved good results in resolving the outstanding issues. In 2004, the two sides reached an agreement on a new rostering arrangement, which was put into effect in January 2005. This signified not only an end to the protracted dispute on rostering practices but also an improved relationship between the HKAOA and Cathay Pacific Airways. There were positive signs that the two parties would continue to engage in constructive and meaningful discussions to resolve the other outstanding issues by bipartite collective bargaining.

51. The Government emphasized the firm belief of the HKSAR Government that the employer and employees of an enterprise were in the best position to deal with matters of mutual concern by direct negotiation. The Labour Department stood ready to render conciliation services to the parties concerned when direct negotiation failed. It would also spare no effort in promoting voluntary negotiation between employers and employees and their respective organizations, for instance, by encouraging employers to maintain effective communication with their employees or their unions and to consult them on matters pertaining to employment through a wide range of promotional activities, such as seminars and talks regularly organized for employers, employees and human resource professionals and a variety of promotional materials on related topics for free distribution to the public (e.g. guidebook titled "Guide to Workplace Cooperation", VCD titled "Break the barrier, be communicative" and VCD titled "Key to Business Success: Workplace Cooperation"). In 2004, the publicity activities of the Labour Department focused on promoting the message of "partnership between employers and employees at work", considering that this partnership spirit was crucial to the success of effective communication and cooperation between employers and employees. To inculcate this partnership spirit in the community, the Labour Department had launched a new television announcement of public interest (API) on "Success through Partnership", a "Good People Management Award", and an informal survey on the mode of labour-management communication in 110 establishments employing 500 people and above. The findings revealed that about 26 per cent of the establishments surveyed had formed joint consultative committees at the enterprise level for the purpose of labour-management communication and consultation. These establishments employed about 133,515 employees (or 49 per cent of the total number of employees in the 110 establishments surveyed). The survey illustrated that a considerable proportion of sizeable enterprises in the HKSAR were already engaged in some form of voluntary negotiation with their employees on terms and conditions of employment through the machinery of joint consultative committees.

52. The Committee notes the information provided by the Government. The Committee notes with concern that the civil action for unreasonable and unlawful dismissal brought before the High Court by several pilots of Cathay Pacific Airways in November 2001 is still pending. The Committee further recalls from the last examination of this case that the dismissed pilots were subject to a legal requirement to fly at least one trip per month to maintain recency (see 333rd Report, para. 350). Thus, in the light of the delay in the judicial proceedings, the Committee had requested the Government (see under (a) above, to take measures so as to end the dispute through a negotiated settlement or, in the absence of such settlement, to intercede with the parties with a view to promoting interim measures preventing irreparable damage for the dismissed pilots pending final judgement on this case.

53. Against this background, the Committee observes that the Government has confined itself to reiterating previously submitted information and states, in particular, that it is not in a position to intervene in the judicial process or exert any influence on the parties in litigation, while it does not provide any indication as to the current stage of the proceedings or the approximate time when a final ruling could be rendered by the High Court. The Committee recalls once again that justice delayed is justice denied and that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 56 and 739). The Committee regrets that the Government has not taken any measure to end the dispute through a negotiated settlement which may be considered by both parties as fair and equitable and requests the Government to take such measures without delay given that the proceedings before the High Court are still pending, fours years after the lodging of a complaint by several pilots of Cathay Pacific Airways for unreasonable and unlawful dismissal. The Committee also requests the Government to inform it of the actual stage of the proceedings before the High Court.

54. With regard to the recommendation made under (b) above on a possible amendment to the Employment Ordinance concerning the issue of reinstatement/re-engagement, the Committee notes that, according to the Government, more time is needed to complete the legal drafting process. The Committee recalls that the amendment in question has been approved by the Labour Advisory Board which has an equal number of employer and employee representatives (see 326th Report, para. 44, and 333rd Report, para. 351) and emphasizes once again the conclusions it reached in Case No. 1942 concerning Hong Kong SAR (China), wherein it considered that it would be difficult to envisage that the requirement of prior mutual consent to reinstatement would be easily forthcoming if the true reason for a dismissal was based on anti-union motives (see 311th Report, paras. 235-271, and 333rd Report, para. 351). The Committee requests the Government to keep it informed of the progress made in amending the Employment Ordinance.

55. With regard to the recommendations made under (c) above on the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination, the Committee takes due note of the existing provisions enumerated by the Government in this respect, but also observes that in the particular case before it, the 50 dismissed HKAOA members and officers have not had an opportunity to effectively voice their grievances, due to various procedural reasons. In particular, the Department of Justice considered that there was insufficient proof to establish an offence under the Employment Ordinance because the requisite standard of evidence for acts of anti-union discrimination is very high and the relevant proceedings are criminal ones, every element having to be proven beyond reasonable doubt; the Labour Tribunal moreover considered that the case was not receivable because a civil action had been previously initiated before the High Court. The Committee also observes that the proceedings currently pending before the High Court for unreasonable and unlawful dismissal tend to be time-consuming and might perhaps not be sufficiently focused on the specific issue of anti-union discrimination. The Committee further recalls from its previous examination of this case that 50 out of 51 dismissed pilots were trade union members including eight officers and three members of the union negotiating team. The dismissals took place immediately following the staging of lawful industrial action. The grounds put forward for the dismissals included disciplinary warnings for reasons which could be seen as closely related to trade union membership and activities, and other generic reasons such as "unhelpful and uncooperative" attitude. The Committee recalls that in a similar case, the Committee found it difficult to accept, as a coincidence unrelated to trade union activity, that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of the seven members of their union committee (see Digest, op. cit., para. 717).

56. The Committee regrets that workers who consider themselves prejudiced because of their trade union activities could not find access to appropriate machinery for the prompt investigation and settlement of their grievances. It recalls that respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress, which are expeditious, inexpensive and fully impartial (see Digest, op. cit., para. 741). It also notes that, although the possibility of criminal prosecution against acts of anti-union discrimination might appear in theory to afford a very high level of protection to the workers, in the particular circumstances of this case it is likely to be ineffective due to the inhibitory effect of the high standard of proof required in criminal proceedings and the difficulties involved in proving beyond a reasonable doubt that the dismissal was by reason of trade union activities. The Committee therefore once again requests the Government to take all necessary measures in consultation with the social partners, so as to consider the adoption of appropriate machinery geared to prevent and redress acts of anti-union discrimination. The Committee requests to be kept informed in this respect.

57. With regard to the recommendations made under (d) on the issue of interference, the Committee takes due note of the measures taken by the Trade Unions Registry pursuant to sections 36 and 37 of the Trade Unions Ordinance so as to prevent acts of interference such as the establishment of workers' organizations under the domination of employers' organizations or support for workers' organizations by financial or other means with the object of placing such organizations under the control of employers or employers' organizations, as required by Article 2(2) of Convention No. 98. However, the Committee also notes from the Government's observations that there is no explicit prohibition of acts of interference in the law or any prompt and effective mechanism of examination of relevant complaints. The Committee observes that acts of interference are not limited to financial domination and that the dismissal of a large number of trade union members, including the leadership of the trade union in question, in the context of a collective dispute, might possibly aim at weakening the trade union and influencing its negotiating power and strategy. The Committee regrets that there is no prompt mechanism in place to investigate such grievances. The Committee recalls that legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers' organizations to ensure the practical application of Article 2 of Convention No. 98 (see Digest, op. cit., para. 764). It once again requests the Government to adopt legislative provisions prohibiting acts of interference coupled with efficient appeal procedures and sufficiently dissuasive sanctions. The Committee requests to be kept informed in this respect.

58. While noting that the relationship between HKAOA and Cathay Pacific Airways has improved and that a new rostering agreement was reached in 2004, thus ending a longstanding dispute on this issue, the Committee also notes that the initiative for the new round of negotiations appears to have come from HKAOA and regrets that the Government does not indicate any initiatives by the Labour Department to assist the parties in bringing an end to their dispute, as requested by the Committee (see under (e) above). The Committee hopes that the Government will give consideration to more proactive measures in the future in the context of promoting negotiated solutions to collective disputes, in conformity with Article 4 of Convention No. 98.

59. Finally, while taking due note of the information provided by the Government on various promotional activities, the Committee must observe that joint consultative committees are not negotiating bodies in the meaning of Article 4 of Convention No. 98 since they seem to play a merely advisory role and that effective communication between the management and workers does not amount to negotiations. The Committee requests the Government to renew its efforts for the effective promotion of bipartite collective bargaining and to take all necessary measures, including appropriate protection against anti-union discrimination and interference, so as to ensure that negotiations are genuine and meaningful.

Case No. 2253 (China/Hong Kong Special Administrative Region)

60. The Committee last examined this case, which concerns allegations that by enacting the Public Officers Pay Adjustment Ordinance in 2002, the Government unilaterally reduced civil service pay without proper negotiations with civil service unions and refused to settle the dispute over pay adjustment through continued dialogue or through a committee of inquiry, as provided in the 1968 Agreement between the Government and the main staff associations, at its November 2004 meeting and formulated the following recommendations (see 334th Report, approved by the Governing Body at its 290th Session, para. 320):

(a) The Committee requests the Government to engage in consultations with the staff sides of the central consultative councils without delay with a view to taking the appropriate legislative measures so as to establish a collective bargaining mechanism allowing public employees who are not engaged in the administration of the State to negotiate collectively their terms and conditions of employment in accordance with Article 4 of Convention No. 98, applicable in the territory of China/Hong Kong Special Administrative Region without modifications. The Committee requests to be kept informed of developments in this respect.

(b) The Committee expects that the staff sides of the central consultative councils will be allowed in the future to engage in full and frank consultations with the Government over the terms and conditions of employment of public employees who are engaged in the administration of the State in accordance with Article 7 of Convention No. 151, applicable in the territory of China/Hong Kong Special Administrative Region without modifications.

(c) The Committee expects that the authorities will accept in the future the appointment of the committee of inquiry provided in the 1968 Agreement between the Government and the main staff associations in case of dispute over the determination of the terms and conditions of employment of public employees.

(d) In light of the recurrent and serious issues involved in recent cases concerning China/Hong Kong Special Administrative Region, the Committee suggests that the Government avail itself of the technical assistance of the Office so as to bring its law and practice into full conformity with freedom of association standards and principles.

61. In a communication dated 13 June 2005, the Government made some observations in the first place, with regard to the comments made by the Committee in its 334th Report, paragraph 320, to the effect that "the consultations which took place during the 2002 civil service pay adjustment exercise seemed to be perfunctory" and the comments made in the 334th Report, paragraph 318, to the effect that "by not bringing this dispute before the committee of inquiry in accordance with the 1968 Agreement, the Government avoided the procedure in place for the settlement of disputes, putting a unilateral end to it, in violation of Article 8 of Convention No. 151 and Article 4 of Convention No. 98". The Government stressed that, in the 2002 pay adjustment exercise, it had spared no effort in consulting the staff sides fully and frankly so as to settle the dispute in the most effective and equitable manner, taking into careful consideration the arrangements under the 1968 Agreement and striking a proper balance between the interests of civil servants and those of society at large.

62. With regard to the staff consultation arrangements for the 2002 civil service pay adjustment exercise (334th Report, para. 314), the Government indicated that the annual civil service pay adjustment mechanism, adopted since the 1970s, functioned on the basis of an inevitably tight timetable given the need to: (i) take account of the latest pay trend data in the private sector up to 1 April of the adjustment year, which were available to the Pay Trend Survey Committee for validation only in early May of the adjustment year; and (ii) seek the necessary funding/legislative approval from the Legislative Council before its summer recess, commencing in mid-July of the adjustment year so that the pay adjustment could be implemented in a timely manner. Accordingly, it was the normal practice of the Government to make a decision on the annual civil service pay adjustment, after considering the staff sides' pay claims and their comments on the Government's pay offer, by around end-May to early June every year in order to allow time for the Legislative Council to consider the Government's proposal. In respect of the 2002 civil service pay adjustment exercise, after considering the pay claims from the staff sides, the Government made a pay offer to the staff sides on 22 May 2002. It then took a decision on the 2002 pay adjustment on 28 May 2002, after taking account of the comments of the staff sides on the pay offer and other relevant factors.

63. There were ample opportunities for the staff representatives to participate in the 2002 civil service pay adjustment exercise and to put forward their views which were given very careful consideration by the Government of the HKSAR in deciding on the pay reduction effective from 1 October 2002 and taken into account by the Legislative Council in approving the legislation that gave effect to the pay reduction. In particular: (i) the staff sides of the four central consultative councils participated in the 2002 civil service pay adjustment exercise from September 2001 (i.e. the year preceding the adjustment year) when the Pay Trend Survey Committee (PTSC) proceeded to review the methodology and the survey field of the Pay Trend Survey to be adopted for that pay adjustment exercise. After the PTSC had finalized the methodology and the survey field of the Pay Trend Survey in December 2002, it commissioned the Pay Survey and Research Unit (PSRU), which was established under the Standing Commission on Civil Service Salaries and Conditions of Service, to carry out the survey field work. Following the submission of the survey findings by the PSRU to the PTSC on 6 May 2002, the latter discussed and validated the findings on 13 May 2002; (ii) to enable the staff sides to take account of the net pay trend indicators in making their pay claims to the Government, the Government of the HKSAR normally invites the staff sides in end-April to early May of the adjustment year to submit their pay claims by mid-May, by which time the Pay Trend Survey results will have been validated by the PTSC. In the 2002 civil service pay adjustment exercise, the Government followed the usual procedures by inviting the staff sides on 29 April 2002 to submit their pay claims by 15 May 2002; (iii) the annual civil service pay adjustment is not a matter to be determined solely between the Government of the HKSAR as the employer and the staff sides of the central consultative councils as the employee representatives. As pointed out above, necessary funding/legislative approval has to be sought from the Legislative Council. It is also noteworthy that the participation of the staff sides in the 2002 pay adjustment exercise did not end with the Government's decision on the pay adjustment - they continued to be involved in the deliberations of the Legislative Council on the proposal concerning the 2002 civil service pay adjustment until the Legislative Council passed the Public Officers Pay Adjustment Bill on 11 July 2002. In this connection, before the Government of the HKSAR made a decision on the 2002 civil service pay adjustment, the Legislative Council Panel on Public Service discussed the matter and invited the staff sides of the four central consultative councils as well as the four major service-wide staff unions to present their views before the Panel on 23 May 2002 (i.e. the day after the Government had made the pay offer to the staff sides); (iv) after the Government had introduced the Public Officers Pay Adjustment Bill into the Legislative Council, the Bills Committee established under the Legislative Council to scrutinize the Bill also invited the staff sides of the four central consultative councils and the four major service-wide staff unions to attend a meeting held on 18 June 2002 to make representation. The staff representatives' views and comments were thus fully reflected to the Legislative Council which, in turn, had examined them and taken them fully into account before passing the Bill on 11 July 2002.

64. The Government added that, under the established civil service pay adjustment mechanism, in reaching the decision of the 2002 civil service pay adjustment, the Government of the HKSAR had taken full account of six factors, namely, the net pay trend indicators derived from the private sector Pay Trend Survey, the state of the economy, budgetary considerations, changes in the cost of living, the staff sides' pay claims and the civil service morale. All factors other than the staff sides' pay claim and civil service morale pointed clearly to the direction of a civil service pay reduction. Having considered all the relevant factors, including the pay claims from the staff sides for a pay freeze, the Government had eventually decided on a fairly moderate pay reduction for 2002 ranging from 1.58 per cent to 4.42 per cent, depending on the salary bands, in line with the net pay trend indicators. Whilst recognizing the staff sides' interests and the importance of staff morale, the Government found it difficult to accede to the staff sides' suggestion at the expense of public interests. The proposed moderate pay reduction was supported by a majority of the Members of the Legislative Council, which passed the Public Officers Pay Adjustment Bill on 11 July 2002 to implement the pay reduction. It is noteworthy that, during the resumption of the Second Reading Debate on the Bill, some Members of the Legislative Council criticized the proposed magnitude of pay reduction as too moderate because, in their view, civil service pay level was already substantially higher than that in the private sector.

65. The Government of the HKSAR was duty bound to implement the annual civil service pay adjustment, irrespective of whether it was an increase or a reduction, in a timely manner. For the 2002 civil service pay adjustment exercise, in view of the negative net pay trend indicators derived from the Pay Trend Survey, it was incumbent upon the Government of the HKSAR to make early preparation for the necessary legislative work in case a final decision was made to implement a pay reduction. Accordingly, the Government of the HKSAR sought the urgent preparation of a draft bill (without specifying any pay adjustment percentages) and the agreement in principle of the Chief Executive in Council on 22 May 2002 (i.e. the date when the Chief Executive in Council considered the pay offer to be made to the staff sides). Following the Executive Council's agreement, the Government informed the staff sides of the pay offer of a pay reduction and sent them a copy of the draft bill for comment. The preparation of the draft bill served two purposes. First, it gave the staff sides a clear idea of how the pay reduction as offered would be implemented. Second, it provided a basis for consultation with the staff sides on the precise means to implement a pay reduction, if so decided, before the legislative proposal was put forward to the Legislative Council for consideration. As the draft bill presented to the staff sides did not contain any pay reduction percentages, which remained a subject for consultation with the staff sides, there was no question that the preparation of the draft bill had in any way pre-empted the discussion between the Government and the staff sides on the pay adjustment for 2002.

66. With regard to the issue of the committee of inquiry (334th Report of the Committee on Freedom of Association, para. 318), the Government indicated in respect of the annual civil service pay adjustment, it was a matter of settled policy that the established pay adjustment mechanism (see paragraphs 5-9 of the Representation) should be followed in determining the size of each year's civil service pay adjustment. For the 2002 civil service pay adjustment exercise, that adjustment mechanism had been followed in an entirely consistent manner. Hence, in accordance with the 1968 Agreement setting out the procedures and criteria for appointing a committee of inquiry, the Chief Executive of the HKSAR concluded that the 2002 civil service pay adjustment was a mater of settled policy and accordingly decided not to appoint a committee of inquiry. The Government of the HKSAR had acted in full compliance with the relevant provisions of the 1968 Agreement and had not avoided the procedures in place so as to end the dispute unilaterally.

67. Procedural consideration apart, the Government did not consider it appropriate to bring the issue before the committee of inquiry. The primary reason underlying the staff sides' request for appointing a committee of inquiry was that a pay reduction implemented by legislation was unprecedented and concern was raised as to whether such an approach was lawful. In this connection, the Government of the HKSAR pointed out that the decision to implement the 2002 civil service pay adjustment by way of legislation was to ensure smooth implementation of a settled policy. Whether the decision could have been implemented without legislation or whether the proposed legislation was constitutional were questions of law which a committee of inquiry would not be able to resolve.

68. In deciding on the 2002 civil service pay adjustment, the Government of the HKSAR had followed the prevailing annual pay adjustment mechanism, which had functioned effectively for some 30 years and provided for voluntary negotiation between the Government of the HKSAR and the staff sides. The staff consultation procedures built into the civil service pay adjustment mechanism were measures appropriate to the conditions of the HKSAR adopted by the Government of the HKSAR, in compliance with Articles 7 and 8 of Convention No. 151, to promote the utilization of machinery for negotiation of the annual civil service pay adjustment between the Government and the staff sides. The mere fact that an agreement could not be reached between the Government and the staff sides over the 2002 civil service pay adjustment after this thorough consultation process should not be taken to mean that the staff consultative mechanism was not in compliance with Articles 7 and 8. Indeed, given the need for the Government of the HKSAR to be accountable for public expenditure and to take account of the overall interests of the community as a whole in dealing with civil service pay, as well as the fact that any adjustments to the civil service pay scales were subject to necessary funding/legislative scrutiny and approval by the Legislative Council, it could not be taken for granted that any agreement reached between the Government and staff representatives on the annual civil service pay adjustment must be implemented without any modification.

69. With regard to recommendation (a) above concerning the establishment of a collective bargaining mechanism for those public employees who are not engaged in the administration of the State, the Government indicated that, in line with its general policy to take measures appropriate to local conditions to encourage and promote negotiations between employers and employees or their respective organizations on a voluntary basis, the Government of the HKSAR had established within the civil service an elaborate staff consultative machinery which encouraged effective communication between management and staff on matters concerning the terms and conditions of employment and allowed participation of staff representatives in the determination of such matters (including making demands for and putting forward counter proposals in response to the offers made by the Government of the HKSAR). This staff consultative machinery in the civil service, which allowed for staff participation in the determination of their terms and conditions of employment effectively, provided for voluntary negotiation of terms and conditions of service. It was complemented be independent arbitration by a committee of inquiry which may be set up under certain conditions prescribed in the 1968 Agreement to consider matters on which agreement could not be reached between the Government of the HKSAR and the staff sides.

70. Although there was no legislation providing for collective bargaining in the civil service, nor was such a legislative approach appropriate to the local conditions of the HKSAR, the staff consultative machinery in the civil service of the HKSAR was consistent with many of the principles underlying collective bargaining (e.g. the voluntary nature of negotiation, the principle of good faith and the objective of regulating the terms and conditions of employment by means of agreement). In accordance with the 1968 Agreement signed between the Government of the HKSAR and three main staff associations, the Government of the HKSAR undertook to discuss with the staff sides, in a spirit of good will, any matters concerning the conditions of service which affected a substantial part of the civil service as a whole, or of the members of one or more of these staff associations. The Government of the HKSAR also undertook not to make any considerable change in conditions of service of civil servants without prior consultation with the staff sides. This undertaking was consistent with the principle of good faith laid down by the Committee on Freedom of Association. Both the Government of the HKSAR and the staff sides sought to reach agreement if possible through such consultation, and undertook to be bound by any agreement reached. In the event that agreement could not be reached after full staff consultation and after exhausting other existing administrative channels, the matter might be referred to an independent committee of inquiry, subject to conditions laid down in the Agreement. The recommendations of the committee of inquiry were binding on both the official side and the staff side provided that certain conditions were met. Reinforcing the staff consultative machinery were various independent bodies which provided impartial advice to the Government of the HKSAR on matters concerning the pay and conditions of employment for the civil service. In general, these bodies took into account the views expressed by staff and management before tendering their advice to the Government of the HKSAR.

71. Given the particular context of the HKSAR, the terms and conditions of employment of the civil service could not be determined solely by the executive arm of the Government of the HKSAR and the staff sides. Specifically, the executive arm of the Government of the HKSAR formulated policy proposals on matters concerning the terms and conditions of employment of the civil service, after consulting the staff sides, for consideration and decision by the Chief Executive in Council. The policy decisions of the Chief Executive in Council were subject to the scrutiny of the Legislative Council, which was vested with the powers and functions, among others, to make laws to implement the policy decisions, where necessary, and to approve public expenditure. In scrutinizing the proposals from the executive arm of the Government of the HKSAR, Members of the Legislative Council offered their independent advice on the matters under deliberation and might, where necessary and appropriate, invite the staff sides of the central consultative councils and other staff representatives to make representations to them directly, as was the case for the 2002 civil service pay adjustment exercise. The views of the staff sides were fully reflected and carefully considered by the Legislative Council before the latter passed the legislation to implement the pay reduction decision.

72. The Government added that, over the past 30 years or so, the established annual civil service pay adjustment mechanism had effectively engaged staff in discussing and determining the civil service pay adjustments, as reflected by the fact that staff were generally in agreement with such pay adjustments until the 2002 civil service pay adjustment exercise which is the subject of the present submission. In the light of the experience of the 2002 civil service pay adjustment exercise, the Government of the HKSAR had sought to further enhance the procedures for staff consultation in taking forward the 2003 civil service pay adjustment process. Well ahead of the usual timetable for staff consultation on the annual civil service pay adjustment the Government of the HKSAR had engaged the staff sides of the central consultative councils and the four major service-wide staff unions in discussions on the 2003 civil service pay adjustment since August 2002 through a dedicated working group. The discussions in the working group culminated in a consensus over the pay adjustments for the 2003 civil service pay adjustment exercise. The Government of the HKSAR was also working closely with staff on the development of an improved civil service pay adjustment mechanism to underpin the established policy of maintaining civil service pay at a level broadly comparable to that of the private sector. To this end, in April 2003, the Government of the HKSAR set up a consultative group on which the staff sides of the four central consultative councils and the four major service-wide staff unions were represented as a regular forum for intensive discussions between the management and staff representatives on a broad range of issues related to the exercise. Since its establishment, the consultative group had held 22 meetings/discussion sessions and would continue its deliberations until the improved mechanism was drawn up.

73. It has been the understanding of the Government of the HKSAR that Article 4 of Convention No. 98 does not place an obligation on any ratified countries/territories to establish a collective bargaining mechanism or to adopt legislative measures for the purpose of establishing such a mechanism. The mechanism for determining the terms and conditions of employment of the civil service in the HKSAR, which comprised voluntary negotiation through an elaborate staff consultative machinery, impartial advice by independent bodies to the Government and the Legislative Council's scrutiny of proposals from the executive arm of the Government, had been adopted in the light of the HKSAR's particular circumstances. This well-tried and long-established mechanism operated in compliance with the spirit and principles of Article 4 of Convention No. 98.

74. With regard to recommendation (b) above, the Government indicated that there was already in existence within the civil service of the HKSAR an elaborate three-level staff consultation mechanism which operated in compliance with the spirit and principles of Article 4 of Convention No. 98 and Article 7 of Convention No. 151 for consultation between management and staff on various issues of concern to civil servants. These issues included the terms and conditions of employment of public employees, regardless of whether they were engaged in the administration of the State. The Government of the HKSAR would build on the established staff consultation machinery and put in place customized procedures or forums to engage staff representatives in more intensive consultation on the terms and conditions of employment of civil servants.

75. With regard to recommendation (c) above, the Government indicated that it would continue to observe the 1968 Agreement and, in the event of a dispute over the determination of terms and conditions of employment of civil servants in the future, consider appointing a committee of inquiry, where appropriate and necessary, in accordance with the relevant provisions of the 1968 Agreement.

76. With regard to recommendation (d) above, the Government of the HKSAR assured the Committee on Freedom of Association that the HKSAR was fully committed to complying with freedom of association standards and principles and would continue its efforts in this respect. The Government of the HKSAR was appreciative of the offer of the International Labour Office's technical assistance and would consider seeking such assistance as and when necessary.

77. In conclusion the Government of the HKSAR had put in place effective measures appropriate to the conditions of the civil service in Hong Kong in compliance with the relevant Articles of the international labour Conventions that were applicable to the HKSAR. The existing staff consultative machinery in the civil service, which allowed for staff participation in the determination of their terms and conditions of employment effectively provided for voluntary negotiation of the terms and conditions of employment between staff and the management. The Government of the HKSAR would continue to monitor closely the operation of the staff consultative machinery within the civil service in the HKSAR and make improvements where necessary and appropriate to enhance the effectiveness of consultation with its staff on matters affecting their terms and conditions of employment.

78. Finally, the Government indicated that a number of applications for judicial review of the Public Officers Pay Adjustment Ordinance which were dismissed by the Court of First Instance in June 2003 were subsequently appealed and the appeals would be heard before the Court of Final Appeal in June 2005. An update would be provided after the conclusion of the relevant judicial review proceedings.

79. The Committee takes note of this information. The Committee recalls that it had requested the Government to keep it informed of developments only with regard to point (a) above, on the establishment of a collective bargaining mechanism allowing public employees who are not engaged in the administration of the State to negotiate collectively their terms and conditions of employment in accordance with Article 4 of Convention No. 98.

80. Nevertheless, the Committee takes due note of the information provided by the Government on improvements in the mechanism for the determination of civil service pay, in particular, the fact that the 2003 civil service pay adjustment exercise commenced well ahead of the usual timetable for staff consultation and culminated in a consensus over the pay adjustments. The Committee also takes note of the establishment of a consultative group, with the participation of the staff sides of the four central consultative councils and the four major service-wide staff unions, as a regular forum for intensive discussions with a view to developing an improved civil service pay adjustment mechanism. Finally, the Committee notes that the Government is planning to build on the established staff consultation machinery and put in place customized procedures or forums to engage staff representatives in more intensive consultation on the terms and conditions of employment of civil servants.

81. With regard to the right to collective bargaining of public employees who are not engaged in the administration of the State, the Committee notes that according to the Government, an elaborate three-level mechanism is already in existence for consultation between management and staff on various issues including terms and conditions of employment of public employees, regardless of whether they are engaged in the administration of the State. The mechanism comprises voluntary negotiation through elaborate staff consultative machinery, impartial advice by independent bodies and the Legislative Council's scrutiny of proposals. It has been adopted according to the Government, in light of HKSAR's particular circumstances and operates in compliance with the spirit and principles of Article 4 of Convention No. 98, which does not place an obligation on governments to establish a collective bargaining mechanism or adopt legislative measures for the purpose of establishing such a mechanism.

82. The Committee wishes to underscore that although nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization, as such an intervention would clearly alter the voluntary nature of collective bargaining, this does not mean that governments should abstain from any measure whatsoever aiming to establish a collective bargaining mechanism. On the contrary, the Committee has previously recalled that measures should be taken 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 the regulation of terms and conditions of employment by means of collective agreements (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 781). This is required by Article 4 of Convention No. 98, which is applicable in the territory of China/Hong Kong Special Administrative Region without modifications.

83. The Committee also recalls from the previous examination of this case the complainant's suggestion that measures to promote collective bargaining could include objective procedures for determining the representative status of civil service unions taking into account that in Case No. 1942 the Committee had requested the Government to give serious consideration to the adoption of legislative provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes which respect freedom of association principles (334th Report, para. 312).

84. With regard to public servants in particular, the Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the Government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of Convention No. 98. Consequently, all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service (Digest, op. cit., paras. 793 and 794). Legislation should therefore contain specific provisions clearly and explicitly recognizing the right of organizations of public employees and officials who are not acting in the capacity of agents of the state administration to conclude collective agreements.

85. The Committee once again requests the Government to examine, possibly within the framework of the recently established consultative group with the participation of the staff sides of the four central consultative councils and the four major service-wide staff unions, the possibility of establishing a collective bargaining mechanism allowing public employees who are not engaged in the administration of the State to negotiate collectively their terms and conditions of employment in accordance with Article 4 of Convention No. 98, applicable in the territory of China/Hong Kong Special Administrative Region without modifications.

86. The Committee takes note of the Government's statement that it will consider seeking technical assistance from the Office as and when necessary and reiterates that such assistance is at the Government's disposal if it so wishes.

Case No. 1916 (Colombia)

87. The Committee has examined this case, which concerns the dismissal of trade union leaders and workers for organizing a strike in 1993 at Medellín Municipal Enterprises on two occasions (see 309th Report, paras. 92-105, and 313th Report, paras. 19-26). The Committee urged the Government to take all necessary measures to reinstate in their posts the trade union leaders, members and workers who had been dismissed for participating in a strike at the undertaking in 1993 (specifically in the refuse collection sector), or, if that were not possible, to ensure that they received full compensation. Similarly, the Committee requested the Government to take measures to ensure that in future, declarations on the legal status of strikes would be made by an independent body and not by the administrative authority, and that amendments would be made to the provisions of the Substantive Labour Code which prohibit strikes in a wide range of services which cannot be considered to be essential services in the strict sense of the term.

88. In a communication of June 2004, the complainant organization states that Medellín Municipal Enterprises are partially complying with the recommendations of the Committee on Freedom of Association and the ruling of the constitutional court, indicating that: 161 workers were reinstated from 27 December 1991 onwards; seven died during the period between their dismissal and the date on which their reinstatement took effect; five were retired by the company during the period between their dismissal and reinstatement; two expressly and voluntarily waived their entitlement to reinstatement; one was reinstated in the company by a judicial ruling of 13 May 1997; and 29 workers were not reinstated on the grounds that their jobs pertained to agricultural management, which did not match the social purposes of the company.

89. In a communication of 15 April 2005, the Government indicates that the constitutional court's protection ruling (sentencia de tutela) No. 568 of 1999 contains the following in section 2 of its decision clause:

Medellín Municipal Enterprises (are ordered) within three months following notification of this review to reinstate the 209 workers dismissed in connection with the events that led to these proceedings, and to acknowledge the arrears of wages and benefits owed to them, on the understanding that they have not been in continuous employment with the company. In the event that it is not possible to reinstate any one of the workers concerned, provided that this is confirmed by the Antioquía Administrative Court, the corporation shall determine the compensation which Medellín Municipal Enterprises shall be required to pay to workers who do not resume their former post for said reason.

The Government states that the company complied with this ruling. As regards the specific case of the 29 workers employed in agricultural services, it compensated them, which is in accordance with the decision clause of the court ruling. The trade union organization alleged two cases of contempt, but it was found that the company had not failed to comply with any judicial ruling. Reinstatement of the workers engaged in agricultural services was physically and legally impossible, given that under the terms of Act No. 142, the Medellín Municipal Council in Agreement No. 0198 of 1998 transformed Medellín Municipal Enterprises into a state industrial and commercial undertaking under municipal authority with the sole aim of providing public cleansing and related services, which does not cover agricultural services.

90. The Committee takes note of this information.

Case No. 2046 (Colombia)

91. The Committee last examined this case in March 2005 (see 336th Report, paras. 285-326). At that time, the Committee formulated the following recommendations:

(a) With regard to the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee recalls that justice delayed is justice denied and requests the Government to take the necessary measures to expedite the judicial procedure under way and to continue to keep it informed of the results of the actions and proceedings brought.

(b) With regard to the dismissal of trade union officers at the Caja de Crédito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, with regard to which the Council of State considered in a resolution that the individual rights of the applicants were safeguarded by acknowledgement of the arrears of wages owed from the time the posts were abolished until the notification of an administrative act setting out the reasons why reinstatement was not possible, the Committee requests the Government to take the measures necessary to ensure, bearing in mind the time elapsed, that the procedures still to be completed for payment of salaries and benefits to the remaining workers are finalized quickly, and to keep it informed in this regard.

(c) With regard to the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS on grounds of legal flaws, the Committee recalls that, although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations and requests the Government to take measures to ensure that, as soon as the minimum requirements are fulfilled, the authorities proceed with registration of the trade unions USITAC, SINALTRABET and UNITAS.

(d) With regard to the actions taken by the enterprise in order to suspend the trade union immunity of William de Jesús Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee requests the Government to inform it as to whether the union officials have been finally dismissed and to give the reasons for such action being taken.

(e) With regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and founders of the Trade Union of Workers in the Beverages and Foodstuffs Industry (USTIBEA), who also include William de Jesús Puerta Cano, together with Luis Fernando Viana Pariño, Edgar Darío Castrillón Munera and Alberto de Jesús Bedoya Ríos, on the grounds of serious disciplinary offences, the Committee requests the Government to take measures to ensure that an independent investigation is carried out to establish whether these dismissals took place following suspension of trade union immunity, and bearing in mind that, according to the information supplied by the Government, workers can only be reinstated once they have begun the appropriate legal action, to keep it informed of any legal action begun or cases brought with this aim. The Committee recalls that, if the competent authorities determine that the dismissals were of an anti-union nature, the unionists in question should be reinstated in their posts.

(f) As regards the legal impossibility to form industry unions grouping workers of various types of industry, the Committee recalls that, in conformity with Article 2 of Convention No. 87, workers have the right to form organizations of their own choosing and consequently it is for workers to determine the union structure they desire.

(g) With regard to the dismissal of members of the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and accepted by some members, the Committee requests the Government to keep it informed of any legal proceedings brought in respect of these measures.

(h) With regard to the closure of the COLENVASES plant, leading to the dismissal of 42 workers and seven union officials without trade union immunity being suspended and without complying with the Ministry of Labour's resolution which authorized the closure but ordered the prior application of clauses 14 and 51 of the collective agreement in force, the Committee again requests the Government to keep it informed of the results of the legal proceedings brought by SINALTRABAVARIA before the administrative judicial authorities concerning resolutions Nos. 2169, 2627 and 2938 and to send a copy of the decisions made.

(i) With regard to the allegations presented by SINTRABAVARIA concerning pressure on workers to resign from the trade union, the Committee requests the Government to take measures to guarantee the full application of the principle that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities.

(j) With regard to the allegations presented by SINTRABAVARIA concerning the denial of trade union leave, the Committee requests the Government to ensure respect in future for the principles contained in Paragraph 10 of the Workers' Representatives Recommendation, 1971 (No. 143), and to indicate whether proceedings have been brought against the company in this respect and, if so, whether the outcome was in favour of the employer.

92. In a communication dated 11 May 2005, the Single Confederation of Workers of Colombia (CUT), in connection with the allegations presented by the Trade Union of Workers of the National Coffee Growers Federation of Colombia and Almacenes Generales de Deposito de Café S.A. (SINTRAFEC), states that the ordinary check-off of union dues is still not been made for workers who are not members of SINTRAFEC but benefit from the collective agreement concluded. According to the complainant, regardless of the Committee's recommendations following earlier examination of the case requesting the Government to carry out an investigation, no information on the subject has as yet been received. The complainant adds that several workers have been dismissed, whose names appear in an appended list, including Alba Lucia Riós Mora, José Horacio Rivera Posada and Jaime Enrique Angulo, who were dismissed on the same day that notification was given that they had joined the trade union, and Luz Adriana Marquez Velasquez and Carlos Odilio Perala Ospina were dismissed eight days after joining. In addition, the National Coffee Federation regularly uses the associated labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement.

93. In a communication dated 8 June 2005, the National Trade Union of Workers in the Industry for the Production, Manufacture and Processing of Food and Dairy Products (SINALTRAPROAL) reports that the Council of State rejected the trade union's complaint against the Ministry of Labour and Social Security's resolution refusing to register the members elected to the Board of SINTRANOEL and also to register the change of status whereby the company-based union SINTRANOEL became an industry union (SINALTRAPROAL), both dated 23 May 1999, refusing furthermore to register the new members of the SINTRANOEL Board approved by the assembly on 6 June 1999. According to the Council of State, following the division of the company Industrias Alimenticias Noel to form two separate companies: Compania Galletas Noel S.A. and Industrias Alimenticias Noel S.A., workers in the employ of one of the companies could not sit on the board of the trade union of the other company and that there were no grounds for changing the company trade union organization into an industry organization because this occurred after the company had been divided into two separate companies.

94. In its communication dated 12 August 2005, the Government states that, in regard to the alleged dismissals and sanctions against workers belonging to SINALTRABAVARIA for participating in a stoppage in the company on 31 August 1999, the cases in question are still before the labour court. To date, the Bavaria company has been found guilty of dismissal without cause, but it is not obliged to reinstate or pay either a retirement benefit or compensation to Mr. Luis Alfredo Quintero Velasquez; it was ordered to pay compensation to Mr. Alfonso Maigal Valdez and Mr. José Luis Salazar, on 4 February 2005. The Government adds that both the company and the workers have appealed, and these cases are currently ongoing.

95. In regard to the dismissal of trade union officers of the Caja de Credito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, the Government states that, of the total 34 court cases, 18 have been completed (13 acquittals and five convictions) and the remaining 16 are ongoing. In the cases culminating in convictions, the Caja de Credito Agrario in Liquidation has issued an administrative notice stating that it is physically and legally unable to effect reinstatement, and ordering the liquidation and payment of wages and benefits in arrears from the time the posts were abolished until the notification of the act stating that reinstatement was not possible.

96. As regards the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS, the Government states that all the administrative remedies initiated by the trade union organizations have been exhausted and that judicial remedies are available but that, to date, no judicial proceedings have been initiated.

97. As regards the actions taken by the enterprise to suspend the trade union immunity of William de Jésus Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Government states that the enterprise has withdrawn its application for suspension of trade union immunity for Messrs. Puerta, Rodas and Ruiz in light of the fact that they never had trade union immunity since the South Itagui directorate to which they belonged failed to meet the minimum qualifying requirements. The Government adds that their dismissals were justified by their refusal to attend training sessions. The Government further states that, with regard to Mr. Puerta Cano, the Superior Court of Medellín ruled that he did not qualify for trade union immunity; the cases of Messrs. Rodas and Ruiz are still before the ordinary court.

98. In regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and of founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA), including William de Jésus Puerta Cano, together with Luis Fernando Viana Patiño, Edgar Dario Castrillón Munera and Alberto de Jésus Bedoya Riós, on the grounds of serious disciplinary offences, the Government states that the Ministry for Social Protection does not have competence to initiate investigations into dismissals without cause, since this can only be performed by a judge. The Government states that it is up to workers to initiate proceedings for dismissal without cause and undertakes to inform the Committee of any legal proceedings that are initiated in this connection.

99. As regards the contention that it is not legally possible to establish industry unions composed of members in the employ of different types of industries, as in the case of SINALTRAINBEC and USTIBEA, which have been refused registration, the Government states that this decision is based on public health and sanitary considerations in that this trade union organization would include workers from the food and alcoholic beverages industries, and denies that the decision is motivated in any way by anti-union discrimination policy.

100. As regards the dismissals of workers belonging to the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and which were taken up by some members, the Government states that no legal proceedings have as yet been initiated.

101. As regards the closure of the COLENVASES plant, leading to the dismissal of 42 employees and seven trade union leaders without suspending their trade union immunity and without complying with the Ministry of Labour's resolution authorizing the closure but ordering prior compliance with clauses 14 and 51 of the collective agreement in force, the Government states that a verdict is awaited from the Administrative Dispute Tribunal and that the Committee will be informed as soon as it is handed down. The Government adds that the Ministry of Labour and Social Security issued resolution No. 2169 on 7 September 1999 ordering the company to comply with clauses 7 and 14, but that the subsequent resolution No. 2627 omits the word "prior". These resolutions were confirmed by resolution No. 2938 of 20 December 1999.

102. As regards the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union, the Government states that no company has at any time brought pressure to bear on workers to relinquish trade union membership.

103. As regards allegations presented by SINALTRABAVARIA concerning the denial of trade union leave, in connection with which the Committee requests information from the Government as to whether proceedings had been brought against the company in this connection and, if so, whether the outcome was in favour of the employer, the Government states that the employer has not been found guilty of denying trade union leave.

104. With regard to the alleged dismissing and sanctioning of workers belonging to SINALTRABAVARIA for participating in a strike at the company on 31 August 1999, the Committee takes note of the decisions adopted to date, and further notes that the appeals launched both by the workers and by the company are ongoing. The Committee affirms that dismissing workers in connection with a legitimate strike constitutes grave discrimination in employment for exercising lawful trade union activity, contrary to Convention No. 98 (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 591) and requests the Government to continue to take the necessary measures to expedite the ongoing judicial proceedings and to keep it informed of the outcome of the proceedings and remedies initiated.

105. With regard to the dismissal of trade union officers at the Caja de Credito Agrario, in disregard of trade union immunity and in contravention of the rulings ordering the reinstatement of a number of these officers, the Committee notes that the Government states that of the total 34 court cases, 18 have been completed (13 acquittals and five convictions) and the remaining 16 are ongoing. In the cases culminating in convictions, the Caja de Credito Agrario in Liquidation has issued an administrative notice stating that it is physically and legally unable to effect reinstatement, and ordering the liquidation and payment of wages and benefits in arrears from the time the posts were abolished until the notification of the act stating that reinstatement was not possible. The Committee requests the Government to keep it informed of the outcome of the 16 remaining cases.

106. As regards the refusal to register the trade union organizations USITAC, SINALTRABET and UNITAS, the Government states that all the administrative remedies initiated by the trade union organizations have been exhausted and that judicial remedies are available but that, to date, no judicial proceedings have been initiated. The Committee again reminds the Government that Convention No 87, Article 2, ratified by Colombia, provides that "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.", and that "although the founders of trade unions should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations" (see Digest, op. cit., para. 248). Consequently, the Committee requests the Government to guarantee compliance with these principles and to take measures to ensure that as soon as the minimum legal requirements are met, the authorities indeed proceed to enrol the trade union organizations USITAC, SINALTRABET and UNITAS on the trade union register.

107. As regards the actions taken by the enterprise to suspend the trade union immunity of William de Jésus Puerta Cano, José Everardo Rodas, Alberto Ruiz and Jorge William Restrepo, the Committee notes that, with regard to Mr. Puerta Cano, the Superior Court of Medellín ruled that he did not qualify for trade union immunity; the cases of Messrs. Rodas and Ruiz are still before the ordinary court. The Committee requests the Government to keep it informed of the final outcome of these remedies.

108. In regard to the alleged subsequent dismissal without cause of SINALTRAINBEC officials and of founders of the Trade Union of Workers of the Beverages and Foodstuffs Industry (USTIBEA), including William de Jésus Puerta Cano, together with Luis Fernando Viana Patiño, Edgar Dario Castrillón Munera and Alberto de Jésus Bedoya Riós, on the grounds of serious disciplinary offences, the Committee notes that the Government has stated that the Ministry for Social Protection does not have competence to initiate investigations, and this can only be performed by a judge, and that it will forward information on any remedies initiated by the workers involved. In the context of the protection of rights of trade union officers with immunity under national legislation (articles 485 and following of the Substantive Labour Code on supervision and monitoring), the Committee is of the view that the administrative authorities hold particular investigative powers, potentially culminating in sanctions, without prejudice to the right of the parties involved to initiate the relevant judicial remedies. This is not a question of declaring individual rights or settling disputes, but of carrying out an investigation into events in order to prevent any infringement of legal provisions (in this specific case, the dismissal of a trade union officer with trade union immunity in the absence of any corresponding judicial authorization) and to punish potential offenders, thereby allowing the parties to apply to the judicial authorities. In these circumstances, the Committee renews its request to the Government to carry out an investigation into this matter and to keep it informed.

109. As regards the contention that it is not legally possible to establish industry unions composed of members in the employ of different types of industries, as in the case of SINALTRAINBEC and USTIBE, which have been refused registration, the Committee notes that, according to the Government, this decision is based on public health and sanitary considerations in that this trade union organization would include workers from the food and alcoholic beverages industries, and denies that the decision is motivated in any way by anti-union discrimination policy. The Committee refers once more to Convention No 87, Article 2, which embodies the right of workers to establish organizations of their own choosing and requests the Government to take the measures necessary to ensure that this principle is fully enforced.

110. As regards the dismissals of workers belonging to the complainant organization SINALTRAINBEC, and the early retirement schemes adopted by the company and which were taken up by some members, the Committee takes note of the Government's information that no legal proceedings have as yet been initiated.

111. As regards the closure of the COLENVASES plant, leading to the dismissal of 42 employees and seven trade union leaders without suspending their trade union immunity and without complying with the Ministry of Labour's resolution authorizing the closure but ordering prior compliance with clauses 14 and 51 of the collective agreement in force, the Committee takes note that the Government states that a verdict is awaited from the Administrative Dispute Tribunal, and that the Committee will be informed as soon as it is handed down.

112. As regards the allegations presented by SINALTRABAVARIA concerning the pressure on workers to resign from the trade union, the Committee takes note that, according to the Government, no company has at any time brought pressure to bear on workers to relinquish trade union membership. The Committee requests the Government to take the measures necessary to carry out an investigation into the matter within the company and to keep it informed.

113. As regards allegations presented by SINALTRABAVARIA concerning the denial of trade union leave, the Committee takes note that the Government states that the employer has not been found guilty of denying trade union leave.

114. As regards the allegations presented by the Single Confederation of Workers of Colombia (CUT), in connection with the allegations that the ordinary discount of the union dues has still not been made by the National Federation of Coffee Growers of Colombia for workers who are not members of the Trade Union of Workers of the National Federation of Coffee Growers of Colombia and Almacenes Generales de Deposito de Café S.A. (SINTRAFEC) but who benefit from the collective employment agreement concluded, regardless of the Committe's recommendations following earlier examination of the case (see 322nd and 324th Reports, paras. 139 and 353, respectively) requesting the Government to carry out an investigation; the dismissal of several workers on account of their trade union membership; and the use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement, the Committee regrets that the Government has failed to forward its comments. The Committee requests the Government to take the necessary steps promptly to ensure that the discount for union dues for benefits under the agreement is effected for non-union members in the National Federation of Coffee Growers of Colombia, for SINFRATEC, and to carry out an investigation into the dismissal of several workers on account of their trade union membership; and the use of labour cooperatives to replace workers on indefinite contracts, despite the fact that this is banned in the collective labour agreement and to keep it informed on these matters.

115. In regard to the allegations presented by the National Trade Union of Workers in the Industry for the Production, Manufacture and Processing of Food and Dairy Products (SINALTRAPROAL) regarding the refusal to register the members elected to the board of SINTRANOEL and also to register the change of status whereby the company-based union SINTRANOEL became an industry union (SINALTRAPROAL), and the refusal furthermore to register the new members of the SINTRANOEL board following the division of the company Industrias Alimenticias Noel to form two separate companies: Compania Galletas Noel S.A. and Industrias Alimenticias Noel S.A., on the grounds that, according to the Council of State, workers in the employ of one of the companies could not sit on the board of the trade union of the other company and that there were no grounds for changing the company trade union organization into an industry organization because this had occurred after the company had been divided into two separate companies, the Committee regrets that the Government has failed to forward its observations. The Committee repeats its request to the Government to take measures to ensure full application of Convention No. 87, Article 2, in keeping with the abovementioned principles.

Case No. 2151 (Colombia)

116. The Committee last examined this case at its March 2005 meeting (see 336th Report, paras. 23-29). On that occasion, the Committee made the following recommendations regarding the issues that remained outstanding.

Dismissal of trade union officials

117. As regards the allegations relating to the dismissals of officials of SINTRABENEFICENCIAS for having formed a trade union organization in the Cundinamarca district, the Committee took note of the information provided by the Government according to which the decisions and agreements regarding the restructuring of the charitable institution of Cundinamarca pre-dated the notification given to that public body regarding the constitution of SINTRABENEFICENCIAS, and that the dismissed trade union officials had been paid compensation in accordance with the collective agreement in force at the time. The Committee took note of the fact that the majority of the judicial proceedings initiated by the dismissed officials had been concluded with rulings favourable to the public body. The Committee took note of the information provided by the trade union organization concerning the administrative decision of the Ministry of Labour that the time period for filing the appeal had lapsed. The Committee nevertheless recalled that in a previous examination of the case, it had requested a copy of the decision arising from the administrative inquiry initiated by the Territorial Directorate of Cundinamarca. Noting that the Government had sent no observations on that matter, the Committee once again requested the Government to provide a copy of the ruling in question.

118. In a communication dated 4 May 2005, the Government states that upon learning of the complaint submitted by UNES against the charitable institution of Cundinamarca regarding the dismissal of workers with trade union immunity, it requested that an inquiry be initiated against the abovementioned body in accordance with the content of the complaint filed by UNES. Once the facts had been analysed by the Coordination Office for Inspection and Surveillance of the Territorial Directorate of Cundinamarca, it was concluded that given the period of time that had elapsed, the action was time-barred, as the national legislation in force lays down time limits within which workers can claim their rights that were allegedly infringed - this period being three years, pursuant to article 151 of the Code of Labour Procedure. The Government adds that the Ministry of Social Protection (formerly the Ministry of Labour and Social Security) is not competent to initiate inquiries into the dismissal of workers who have trade union immunity, and that this task falls within the competence of labour judges. The Government requested information from the charitable institution of Cundinamarca on the dismissal of workers with trade union immunity, asking it to indicate whether their respective immunity had been lifted in order to carry out the dismissals. The director of the charitable institution of Cundinamarca indicated that procedures for lifting their trade union immunity had not been initiated, but that statutory payments had been made and that compensation had been recognized and paid in accordance with the collective labour agreement. According to the Government, trade union immunity constitutes a guarantee of freedom of association, rather than protection of the labour rights of unionized workers, since this guarantee protects trade union organizations and therefore does not have financial significance, as the trade union organization claims; thus, when a worker with trade union immunity is dismissed, what is recognized is entitlement to compensation for unfair dismissal.

119. In this regard, the Committee observes that sections 405 and 408 of the Substantive Labour Code provide for the following in relation to trade union immunity:

Section 405. Definition. "Trade union immunity" is the guarantee enjoyed by certain workers that they will not be dismissed or penalized in terms of their conditions of employment, or be transferred to other establishments within the same enterprise or to a different municipality, without just cause previously certified by a labour judge; and section 408. Content of the decision. The judge will deny an employer's request for authorization to dismiss a worker protected by trade union immunity, or to penalize or transfer that worker, unless he establishes the existence of just cause. If, in the case referred to in the first paragraph of section 118 of the Labour Procedural Code, it is ascertained that a worker has been dismissed without complying with the provisions governing trade union immunity, he must be reinstated and the employer will be ordered to pay him, by way of compensation, the wages he failed to receive owing to his dismissal. Furthermore, in the cases referred to in the third paragraph of the same section, an order shall be issued for reinstatement of the worker in his previous post or with the same conditions of employment, and the employer shall be ordered to pay him the compensation due.

Under these circumstances, taking into account the fact that the Government has informed the Committee that the dismissal of officials of SINTRABENEFICENCIAS was carried out in breach of the provisions of the Labour Code, the Committee requests that the Government take the necessary measures to reinstate these officials, without any loss of wages.

Collective bargaining in the public sector

120. The Committee requested that the Government provide information on progress made with regard to collective bargaining in the public sector in the Capital District.

121. The Government indicates that Decree No. 137 of 2004 has been adopted, establishing the District Committee on Labour Dialogue and Coordination and the Subcommittees on Wages, the Public Administration and Trade Union Guarantees, with the participation of the District's trade union organizations. Within the framework of the abovementioned subcommittees, a number of agreements have been concluded, for example, an agreement regarding the wage increase applicable to all public servants in the Capital District. Furthermore, the Subcommittee on the Public Administration has held numerous meetings, in which agreements were concluded on mechanisms for applying Act No. 909 of 2002 on the public administration. One of these agreements relates to the procedure for electing workers' representatives on staff committees - such elections will take place on the same date in all the administrations of the Capital District; this contributes to strengthen democratic processes and the participation of workers in matters which directly concern them. The Subcommittee on Trade Union Guarantees has been responsible for the granting of trade union leave and other matters relating to the protection of the right to organize and freedom of association.

122. The Committee takes note of this information.

Pending judicial decisions

123. The Committee requested that the Government provide information on the outcome of the proceedings pending before the Council of State concerning the legality of Decree No. 1919 which suspended certain advantages in respect of wages and benefits required under the terms of collective agreements.

124. The Government states that no ruling has been handed down yet.

125. The Committee takes note of this information and requests that the Government keep it informed of any rulings handed down.

Failure to consult

126. The Committee requested that the Government provide information on the allegations by SINTRAGOBERNACIONES concerning failure to consult the trade union during the preparation of a draft by-law aimed at modifying the Basic Statute of the Public Administration of Cundinamarca and reorganizing the structure of the departmental administration.

127. The Government states that section 4 of by-law No. 14 of 2004, issued by the Cundinamarca Assembly, provides for the establishment of a monitoring committee made up of the following: two members representing the Assembly and appointed by its officers; two members representing officials of the public administration and official employees, of which at least one must belong to a trade union organization; and two representing the departmental government and designated by the Governor. In order to ensure the democratic participation of all departmental public servants, and given that by-law No. 14 did not provide mechanisms for the election of members of the committee, the Governor of the Department issued, on 23 September 2004, Circular No. 7 which established the procedures for doing so. Once the election had taken place, the public servants failed to designate their representative, and therefore the department complied with the obligation to promote democratic participation, in accordance with the procedures set forth in Circular No. 7 of 2004. Given that blank ballot papers were submitted in the said election, an alternative mechanism of electing the committee was sought, and in Circular No. 08 of 3 December 2004 a new procedure was established with a view to ensuring the participation of public officials in the Support and Monitoring Committee. In compliance with Circular No. 08, elections were held and Mr. Wilson López Sánchez, in his capacity as member of SINTRAGOBERNACIONES (Bogotá branch), was unanimously elected as representative of the official workers. At the time of his election, Mr. Wilson López Sánchez was a member of the trade union organization's Complainants Committee. Also elected was Mr. Fernando Ernesto Fierro Barragán, who is an expert from the Departmental Institute of Community Action and an official listed in the public register of the public administration. The trade union executive committee subsequently removed Mr. Wilson López Sánchez immediately and arbitrarily from the Claims Committee, thus "penalizing" the fact that a unionized worker was a member of the Support and Monitoring Committee established under by-law No. 14 of 2004. The Government adds that on 14 December 2004, the departmental administration, with a view to providing information on progress made in the restructuring process, held a meeting with the heads of the trade union organizations of the departments, at which they were informed of the methodology adopted, in order to dispel any misgivings they may have had in that regard. The Government indicates that the departmental government of Cundinamarca is implementing procedures to liaise with trade union organizations as to ensure that they can participate in the restructuring process.

128. The Committee takes note of this information.

Case No. 2226 (Colombia)

129. The Commitee last examined this case at its November 2004 meeting (see 355th Report, paras. 751-762). On that occasion, it formulated the following recommendations:

(a) With regard to the dismissal of the executive committee of ANTHOC without the judicial authorization required by Colombian legislation, in the framework of the mass dismissals that took place at the San Vicente de Paul Hospital, considering that according to the Government's statement there has not been a request to lift the trade union immunity of the dismissed trade union officials, the Committee reiterates its previous recommendation and requests the Government to take steps without delay to reinstate them without loss of pay and to keep it informed in this respect.

(...)

(c) With regard to the allegations relating to the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga in the department of Magdalena, the Committee requests the Government to keep it informed of the outcome of the appeal lodged with the territorial directorate against the administrative decision and expects that steps will be taken to guarantee compliance with the collective agreement in respect of the withholding of trade union dues and the payment of travel expenses to trade union officials.

(d) With regard to the allegations submitted by UTRADEC concerning the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her in particular, and issued threats to make her leave the trade union, the Committee once again requests the Government to keep it informed of the outcome of the administrative investigation referred to in its previous examination of the case.

130. In a communication dated 5 September 2005, the Government states, with regard to the dismissal of the executive committee of ANTHOC without prior judicial authorization, that the judgements handed down by the Itagui Labour Court found that it was not necessary to lift trade union immunity in the restructuring process at the San Vicente de Paul Hospital in Caldas, Antioquia, as this was not a case of wrongful dismissal, but of dismissal for just cause, i.e. the elimination of a post following administrative restructuring of the state body, based on articles 150(16), 300(7), and 313(6) of the Constitution. Moreover, judgements handed down by the Court of Medellín on 5 and 12 March 2005 found that the workers covered by trade union immunity who had been dismissed from the San Vicente de Paul Hospital in Caldas, Antioquia, should not be reinstated, as the general interest prevails over the individual interest, according to constitutional court ruling T-729 of 1998.

131. With regard to the allegations concerning the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA, and the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, by the authorities of the Institute of Traffic and Municipal Transport of Ciénaga, who refused to negotiate with her, the Government states that following the investigation initiated by the Territorial Directorate of Magdalena, Inspectorate of Ciénaga, Decision No. 0010/04 of 9 December 2004 was handed down, which exonerated the legal representative of Ciénaga, in view of the fact that an agreement had been reached between the latter and the trade union. The decision became enforceable, in the absence of any appeal provided for by law. The Government adds that María Teresa Romero Constante, president of SINDICIENAGA, played an active part in that process.

132. With regard to the allegation concerning the dismissal of the executive committee of ANTHOC without prior judicial authorization, on the grounds of restructuring at the San Vicente de Paul Hospital in Caldas, Antioquia, the Committee recalls that in its previous examination of the case it had requested the Government to take steps without delay to reinstate the dismissed trade union officials. The Committee notes the information provided by the Government to the effect that the judicial authority found that it was not necessary to lift trade union immunity as this was not a case of wrongful dismissal, but of dismissal on legal grounds of elimination of posts following administrative restructuring. The Committee regrets the failure to take into account the principle contained in the Workers' Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce (Paragraph 6(2)(f)), and the principle that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations, without giving preference to proceeding by decree and ministerial decision (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 960 and 936, respectively).

133. With regard to the allegations relating to the default on the collective agreement as regards the payment of travel expenses and the withholding of trade union dues owed to SINDICIENAGA and the anti-union harassment against María Teresa Romero Constante, president of SINDICIENAGA, the Committee notes the information provided by the Government to the effect that an agreement was reached on the default on the collective agreement and the payment of travel expenses and withholding of trade union dues between the trade union and the legal representative of Ciénaga, with the participation of María Teresa Romero Constante.

Case No. 2239 (Colombia)

134. The Committee last examined this case, relating to the collective dismissal of workers and their replacement by labour cooperatives whose workers do not enjoy the right to trade union membership, anti-union dismissal of workers and the signing of a collective accord with negative consequences for trade union members at its March 2005 meeting (see 336th Report, paras. 327-359). On that occasion, the Committee made the following recommendations:

(a) Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor, and the subsequent contracting of workers through associated labour cooperatives, who, according to the complainants, do not enjoy the rights to freedom of association and collective bargaining, the Committee deeply regrets this situation and considers that such workers should enjoy the right to join or form trade unions in order to defend their interests. It requests the Government to take the appropriate steps to guarantee full respect for freedom of association. The Committee reminds the Government that the technical assistance of the Office is at its disposal.

(b) With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of union official Mr. José Angel López, bearing in mind the discrepancies between the allegations made by the complainant and the information supplied by the Government, the Committee urges the Government to take the appropriate measures without delay to ensure that the appeals lodged are resolved and to keep it informed of the results of the appeals and of any other legal action which may be brought in this regard.

(c) With regard to the serious allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of workers from the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Committee requests the Government to take the necessary measures to ensure that workers are not pressured into accepting against their will a collective accord which implies resignation from a trade union and to keep it informed of the result of the investigation launched by the regional directorate of Cundinamarca in this regard.

(d) With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Committee requests the Government to keep it informed of the result of the investigation launched.

(e) With regard to the new allegations made by SINALTRADIHITEXCO concerning the unilateral annulment by Tejicondor S.A. which merged with Fabricato S.A. of a collective agreement signed by Fabricato S.A., the refusal to grant trade union leave or to convene the Arbitration Tribunal requested by the complainant in June 2003, on which administrative resolutions were issued which left the parties free to have recourse to the ordinary courts, the Committee recalls that agreements should be binding on the parties and that, in accordance with Paragraph 10 of the Workers' Representatives Recommendation, 1971 (No. 143), workers' representatives should be afforded the necessary time for carrying out their representation functions and that, while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. The Committee urges the Government to ensure respect for these principles and requests the Government to keep it informed of any legal action taken in this respect.

135. In its communication received in March and May 2005, the National Union of Workers in the Weaving, Textiles and Clothing Industry (SINALTRADIHITEXCO) supplies additional information to that considered during previous examination of the case, concerning the merger between Fabricato and Tejicondor and the unilateral decision adopted by the company to apply to all workers a collective agreement signed at Fabricato by the SINDELHATO trade union prior to the merger, despite the fact that according to the complainant, the collective agreement signed in Tejicondor with SINALTRADIHITEXCO had been in place longer and afforded greater benefits to workers. The trade union adds that in March 2003, Fabricato Tejicondor increased Tejicondor workers' wages on the condition that they resigned from SINALTRADIHITEXCO, being subsequently obliged to join SINDELHATO, the primary trade union at Fabricato, although this union attracted the membership of only half the combined workforce of the two merged companies. The complainant states that SINDELHATO has now presented a new list of demands and that the company has threatened not to renew the contracts of those workers who are members of SINALTRADIHITEXCO. For this reason, the remaining workers resigned from SINALTRADIHITEXCO and joined SINDELHATO.

136. In its communications dated 24 February (received on 17 March), 13 June and 12 August 2005, the Government states that with regard to the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor, and the subsequent contracting of workers through associated labour cooperatives, who, according to the allegations, do not enjoy the rights to freedom of association and collective bargaining, because of the nature of cooperatives, in which the dependent relationship characteristic of a contract of employment and essential for the establishment of a trade union does not exist, workers who belong to a cooperative may not establish or join a trade union.

137. With regard to allegations concerning the unilateral annulment by Tejicondor of the signed collective agreement following the merger of this company with Fabricato, the Government states that the convention signed between Tejicondor and SINALTRADIHITEXCO was valid until 31 July 2003, and that it was observed until that date. From then on, the agreement signed by Fabricato and SINDELHATO became applicable to all workers from the merged Fabricato-Tejicondor company. This agreement applied between 5 April 2002 and 4 April 2005. The Government adds that the majority trade union is SINDELHATO, representing 56 per cent of company workers, whilst SINALTRADIHITEXCO represents only 17 per cent.

138. With regard to the request by SINALTRADIHITEXCO to convene an arbitration tribunal, the Government states that this request was refused on the grounds of failure to comply with article 444 of the Substantive Labour Code with respect to the time limit for the direct settlement stage between the parties.

139. With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of the union official, Mr. José Angel López, the Government states that the appeals lodged by the complainant and the company, against the resolution issued by the Territorial Directorate of Antioquia of the Ministry of Social Protection ruling that it was not competent to examine the dismissal of Mr. Cadavid and the suspension of Mr. López, were quashed through resolutions Nos. 2354, dated 17 September 2004, and 3461, dated 22 December 2004. The Government adds that the parties have the option to bring legal proceedings before the labour courts.

140. With regard to the serious allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of workers from the National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Government states that current legislation allows companies to enter into collective accords (pactos colectivos) unless a trade union exists representing more than one-third of the workers at a company, in which case the company in question is not permitted to enter into collective accords. The Government underlines the fact that in this case, SINTRAIME does not represent more than one-third of the workers.

141. The Government adds that in 2003, those workers who were not members of a trade union lodged a list of demands, since they were not covered by the collective agreement concluded with the company (the Government encloses 600 declarations from workers who entered into the collective accord, stating that they did so of their own free will). The workers entering into the collective accord were not members of a trade union. By virtue of this accord, a committee was formed comprising two workers who had entered into the accord and two company representatives tasked with approving or rejecting membership of workers, union members or otherwise. With regard to the allegations concerning automatic resignation from the trade union by those members who had entered into the collective accord, the Government points out that this procedure is not possible, either under current legislation or in practice.

142. The Government states that the trade union brought legal proceedings before the labour courts, requesting the annulment of the collective accord, which are currently being heard by the Third Labour Court of the Bogotá Circuit. Furthermore, the Government states that the Regional Directorate of Cundinamarca conducted an administrative labour investigation into possible irregularities within GM Colomotores and resolved not to take measures through resolution No. 4570 dated 23 November 2004. Appeals were launched against this resolution. The first was quashed and the second is being heard.

143. With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Government states that the Attorney-General's office began an investigation assigned to the public prosecutor of the Bello district and that, according to the attestation dating from March 2005, the perpetrators of the act have yet to be identified.

144. Regarding the dismissal of more than 100 workers belonging to SINALTRADIHITEXCO from Tejicondor and the subsequent contracting of workers through associated labour cooperatives who do not enjoy the rights to freedom of association and collective bargaining, the Committee notes that once again, the Government states that because of the nature of cooperatives, in which the dependent relationship characteristic of a contract of employment and essential for the establishment of a trade union does not exist, workers who belong to a cooperative may not establish or join a trade union. The Committee once again reiterates in general terms that under Article 2 of Convention No. 87, ratified by Colombia, workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. At the same time, recalling the Promotion of Cooperatives Recommendation, 2002 (No. 193), which calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships, the Committee recalls that "although ... cooperatives represent one particular way of organizing production methods, the Committee cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests ... and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests". The Committee requests the Government to take all of these principles into account and reminds the Government that the technical assistance of the Office is at its disposal.

145. With regard to the allegations concerning the unilateral annulment by Tejicondor of the signed collective agreement following the merger with Fabricato, the Committee takes note of the information provided by the Government according to which the agreement signed by workers from Tejicondor was applied to these workers until its expiry date, after which the collective agreement signed between Fabricato and SINDELHATO, currently covering 56 per cent of workers in the company, was extended to them. With regard to the alleged pressure exerted on SINALTRADIHITEXCO members to resign from the trade union and the threat not to renew the contracts of those workers who are members of SINALTRADIHITEXCO, the Committee notes that the Government does not supply any observations relating to this question. The Committee requests the Government to take steps to conduct an investigation in order to determine the true facts, and to guarantee to those workers who are members of SINALTRADIHITEXCO their trade union rights without prejudicial consequences for their employment contracts.

146. With regard to the allegations made by SINALTRADIHITEXCO concerning the dismissal of Mr. Carlos Mario Cadavid and the suspension of the union official Mr José Angel López, the Committee takes note of the fact that the administrative appeals being heard were quashed and that the parties have the option to bring legal proceedings before the administrative dispute courts.

147. With regard to the allegations presented by the WFTU concerning the forced signing of a collective accord (pacto colectivo) with member and non-member workers at GM Colomotores, which implied the automatic resignation of a high percentage of National Union of Workers in Metal Mechanics, Metallurgy, Iron, Steel, Electro-metals and Related Industries (SINTRAIME), the Committee takes note of the information provided by the Government according to which no forced signing took place (the Committee takes note of the statements made by workers to the effect that signing of the collective accord was done on a voluntary basis); that SINTRAIME does not cover more than one-third of workers and that as a result, the company can enter into a collective accord with non-trade union members and that the automatic resignation alleged by the complainant is not possible in Colombia, either under current legislation or in practice. At the same time, the Committee notes that the appeal lodged against the resolution of the Territorial Directorate of Cundinamarca concerning its lack of competence regarding the suspected irregularities at GM Colomotores is still being considered. Nevertheless, the Committee recalls "that the principles of collective bargaining must be respected taking into account the provisions of Article 4 of Convention No. 98, and that the collective accords should not be used to undermine the position of the trade unions" (see 324th Report, Case No. 1973, 325th Report, Case No. 2068 and 332nd Report, Case No. 2046 (Colombia)). The Committee requests the Government to keep it informed of the final outcome of the appeal that has been lodged.

148. With regard to the allegations concerning the murder of Mr. Luis Alberto Toro Colorado, a member of the national executive committee of SINALTRADIHITEXCO, the Committee takes note of the ongoing investigation by the Attorney-General's office assigned to the public prosecutor of the Bello district and requests the Government to continue doing all within its power to establish the identity of the murderers so that they may be duly punished, and to keep it informed of any developments related to the case.

Case No. 2316 (Fiji)

149. The Committee last examined this case, which concerns the Government's alleged failure to enforce a Compulsory Recognition Order (CRO) for the recognition of the National Union of Hotel, Catering and Tourism Industry Employees (NUHCTIE) by Turtle Island Resort, and counter attempts by the employer to avoid recognition of the complainant, notably through delaying tactics, as well as anti-union dismissals and interference, at its March 2005 meeting (see 336th Report approved by the Governing Body at its 292nd Session, paras. 45-58). On that occasion, the Committee expressed regret at the withdrawal of the complainant's recognition as representative union and requested the Government to exercise greater vigilance in the future when it came to ensuring protection against acts of anti-union discrimination and interference and - taking into account the recent ratification of Convention No. 87 as well as steps taken to enact industrial relations legislation - to take all necessary measures to ensure that an expeditious and effective mechanism was put in place to prevent and remedy such acts. The Committee also requested the Government to take all necessary measures so as to ensure that trade unions, including the complainant, enjoyed the facilities necessary for the exercise of their functions, such as access to the workplace and the possibility to meet with management and members without impairing the efficient operation of the undertaking.

150. In communications dated 15 May and 14 September 2005, the Government indicated that the NUHCTIE had applied to the Ministry of Labour, Industrial Relations and Productivity for a CRO on 7 November 2002, after it had failed to receive any response from the employer on this issue. A special visit was made by officers of the Ministry to the island to conduct a determination exercise and establish whether the majority of workers had joined the union. As a result, a CRO was issued on 22 January 2003. The NUHCTIE appeared, however, not to have taken any action for five months after the CRO was issued. The workers had obviously lost interest in continuing with the membership of the union. The employer applied for derecognition on 19 June 2003 and following a determination exercise, the NUHCTIE was found to have nil membership. As a result, the union was informed through a notice by the Chief Executive Officer of the Ministry that it had ceased to be entitled for recognition by the Turtle Island Resort and that the CRO could not be legally imposed on the company.

151. The Government added that it became aware of the complainant's allegations of anti-union dismissals only in August 2004 when the complainant communicated a fax highlighting the conclusions and recommendations of the Committee in this case and emphasizing that more than 60 workers remained dismissed by the management of Turtle Island Resort (the Government attached a copy of the fax dated July 2004). By then, the recognition of the complainant had already been withdrawn. The Government sent labour inspectors after the Committee's report was published in the local media, but they could not ascertain the allegations, as there were no union members then. As the complainant did not represent any workers at the resort, any investigation on anti-union discrimination and interference was a non-issue.

152. As for the progress made in the adoption of a bill on industrial relations, the Government indicated that the Employment Relations Bill was listed to be tabled at the next sitting of Parliament, which commenced on 19 September 2005. Section 77 of the Bill guaranteed protection against acts of anti-union discrimination and interference. Section 125(f) allowed for the refusal of registration of a trade union which was under the domination or control of the employer and that section 145 of the Bill stated that no suit or other legal proceedings may be instituted and maintained in a court of law against a registered trade union or an officer or member of the trade union in respect of an act done in contemplation or in furtherance of a dispute. A worker may pursue an employment grievance like unfair dismissal under Part 13 of the Bill either personally or through a representative, the Mediation Service or the Employment Dispute (Part 17). If the grievance remained unsettled, it could be referred to the tribunal.

153. The Government added that the Trade Union Recognition Act would be amended by removing a reference to trade union recognition so that any registered trade union could visit the workplace in order to discuss union business and recruit members. In particular, section 145 of the Employment Relations Bill provided that a representative of a registered trade union had the right to enter a workplace for purposes related to the union's business without disrupting the work in order to: (a) discuss union business with the members; (b) recruit workers as union members; or (c) provide information on the union and its membership to any worker on the premises. Upon enactment of the Bill, unions would be entitled access to any workplace. A delay in the enactment of the Bill was due to the extensive consultations carried out among the Government, the social partners and other stakeholders. This included the ILO's views on the requirements of the relevant Conventions, which had been taken on board.

154. With regard to the particular case at hand, the Government indicated that the management had been required, due to the initial recognition of the complainant, to negotiate with the complainant with a view to concluding a collective agreement. The collective agreement should include a procedure agreed by both parties for the union's access to the workplace so as to meet their members. However, before any arrangement was made to meet and negotiate with management, the complainant had demanded access to the workplace to meet the members without due consideration to the operation of the undertaking, hence the refusal by management. Section 147 of the Bill was put in place to allow unions' access to the workplace in the exercise of their functions.

155. The Committee notes with interest that according to the Government, the Employment Relations Bill was listed to tabled in Parliament for enactment and contained provisions on protection against acts of anti-union discrimination and interference, as well as on the right of all registered trade unions to visit the workplace, communicate with management, recruit members and provide information on the union, regardless of their recognition as representative. The Committee refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 2187 (Guyana)

156. The Committee last examined this case, which concerns various alleged attempts by the Government to weaken the Guyana Public Service Union (GPSU), at its November 2004 meeting (see 335th Report, approved by the Governing Body at its 291st Session, paras. 110-116). At that time, the Committee had noted that it expected to be kept informed of developments on the outcome of a number of judicial proceedings concerning the enforceability of the 1999 Memorandum of Agreement on arbitration, the dismissal of 12 trade union officers and members on anti-union grounds, the certification of the majority union in the Guyana Forestry Commission and the deduction of trade union dues in the Guyana Fire Service. It further requested the Government to provide detailed and full information concerning improvements to the current check-off system through the adoption of adequate safeguards against interference, the forwarding to the complainant Guyana Public Service Union (GPSU) of any contributions made in June and July 2000 which had been retained, and the institution of an independent inquiry into the reasons for the dismissal of Barbara Moore.

157. In a communication dated 9 July 2005, the Government provided new information on this case. With regard to the issue of the enforceability of the 1999 Memorandum of Agreement, the Government indicated that the court case on this question was still pending. With regard to the Committee's suggestion that in rendering a decision on this case, full account should be taken of the principles according to which agreements should be binding on the parties and the harmonious development of labour relations would be facilitated if the public authorities, when dealing with the problems concerning the workers' loss of purchasing power, adopted solutions which did not involve modifications of agreements without the consent of both parties, the Government indicated that it had no control of the proceedings and could not determine what would be taken into account, as this would depend on the submission of the parties.

158. The Committee observes that the judicial proceedings concerning the enforceability of a Memorandum of Agreement adopted in 1999, are still pending before the courts. Recalling that justice delayed is justice denied, the Committee requests the Government to provide specific information in its next report on the current stage of the proceedings and to do all within its power to facilitate an acceleration of the proceedings and to keep it informed in this respect.

159. With regard to the Committee's recommendation that the Government ensure the exercise of great restraint in relation to any form of interference which might occur in the context of the collection of trade union dues, and undertake consultations with representative trade unions as soon as possible in order to consider improvements to the current check-off system through the adoption of adequate safeguards against interference, the Government indicated that it did not interfere with the collection of union dues. Just like a private sector employer, it facilitated unions by deducting union dues, but behoved unions to assist such facilitation by having their members issue the necessary authority to deduct. Unions must understand that they did not have a legal right to cause employers to deduct union dues. This was done by mutual agreement and the Government encouraged such agreement. Recently, 42 employees from the Ministry of Public Works wrote to the Permanent Secretary advising that they were withdrawing from their union, the NUPSE, and requested that the Ministry stop the deduction of union dues from their salaries. The Permanent Secretary rightly advised them that they had to submit the necessary cancellation of authority to deduct forms to be obtained from the union.

160. The Committee observes that the Government does not provide any information on any consultations with representative trade unions in order to consider improvements to the current check-off system through the adoption of adequate safeguards against interference. It requests the Government to undertake such consultations without delay and keep it informed of developments.

161. With regard to the implementation by both the Government and the GPSU of the High Court ruling of July 2000 by, on the one hand, providing written authorizations for the deduction of trade union dues and, on the other, ensuring that such deductions and their payment to the GPSU are carried out promptly and in full, the Government indicated that the High Court ruling of July 2000 had been implemented. The ruling was consistent with what the Government had been requesting the union to do. Although the dues for June and July 2000 had not been transmitted in a timely manner by a few ministries, as indicated during the previous examination of this case, all outstanding dues had since been forwarded to the union.

162. The Committee notes from the Government's report that the High Court ruling of July 2000 has been implemented and all outstanding dues have been forwarded to the GPSU.

163. With regard to the cases concerning the dismissals of 12 trade union officers and members, the Government had advised in an earlier response that the court had not found that the workers had been dismissed on anti-union grounds. The matter had been appealed and the Court of Appeal ruled that some be reinstated and others be paid terminal benefits (copy of decision and clarification of judgement attached). In keeping with the decision, William Pyle and Anthony Joseph would be reinstated in parallel positions in the public service, William Blackman had sought and been granted early pension and Cheryl Scotland had been reinstated in a parallel position but had challenged her posting in the courts. The others had been paid all benefits as ordered by the court.

164. The Committee notes that pursuant to a decision by the court of second instance ordering that some of the 12 dismissed trade union officers and members be reinstated and others be paid terminal benefits, William Pyle and Anthony Joseph would be reinstated in parallel positions in the public service; William Blackman had sought and been granted early pension; Cheryl Scotland had been reinstated in a parallel position but had challenged her posting in the courts; they and the other GPSU officers and members (Cheryl Scotland, William Blackman, Marcia Oxford, William Pyle, Yutse Thomas, Anthony Joseph, Niobe Lucius, and Odetta Cadogan) had been paid all benefits as ordered by the court. The Committee requests the Government to keep it informed of the steps taken to carry out the reinstatement of William Pyle and Anthony Joseph in a post corresponding to their previous functions and the progress of the court proceedings concerning the reinstatement of Cheryl Scotland in a post corresponding to her previous functions. The Committee also requests the Government to specify the outcome of the judicial proceedings under way with regard to Leyland Paul, Bridgette Crawford, Karen Vansluytman and Yvette Collins whose names do not appear on the text of the judgement appended by the Government to its response.

165. With regard to the reasons for the dismissal of Barbara Moore, the Government indicated that the Guyana Forestry Commission was managed by a board of directors and Ms. Moore was among a number of persons made redundant. The others had accepted their terminal benefits and the union had not made their termination an issue. Ms. Moore was paid all her entitlements provided by law and the collective agreement. This was therefore a non-issue.

166. The Committee observes that Barbara Moore has not challenged her dismissal in court and will therefore not proceed any further with the examination of this matter.

167. With regard to the judicial proceedings concerning the certification of the majority trade union in the Guyana Forestry Commission, the Government indicated that the GPSU had lost a poll called by the Trade Union Recognition and Certification Board and that the matter was engaging the attention of the court.

168. Recalling once again that the facts of this case date as far back as 1999 and that justice delayed is justice denied, the Committee requests the Government to keep it informed of the progress of judicial proceedings on the issue of the certification of the majority trade union in the Guyana Forestry Commission and to do everything within its power to facilitate an acceleration of the proceedings.

169. With regard to the case concerning the Guyana Fire Service, the Government indicated that it was still pending before the courts and the decision would be sent to the Committee when available. With regard to the Committee's recommendation that the Government take all necessary measures to ensure that this case is heard in court as soon as possible, and that in rendering a decision on this issue, full account should be taken of Article 2 of Convention No. 87, ratified by Guyana, pursuant to which firemen, like all other workers, have the right to establish and join organizations of their own choosing, the Government indicated that the judiciary was independent and judges were appointed by the Judicial Service Commission, i.e. a constitutional body. The Government, therefore, had no control as to the time of the hearing or what would be taken into account.

170. Recalling once again that justice delayed is justice denied and that firemen, like all other workers, have the right to establish and join organizations of their own choosing, the Committee requests the Government to keep it informed of the progress of judicial proceedings on the issue of pressure to quit the GPSU brought to bear in the Guyana Fire Service and once again requests the Government to do everything within its power to facilitate an acceleration of the proceedings.

171. The Government finally indicated that it was conscious of its responsibility under the Constitution of the ILO and fully respected the principles of freedom of association which were protected by the Constitution of Guyana. The Government still considered the action of the union in some instances as an abuse of the process, but at no time had it said that it would not cooperate with the Committee on the current issues. The Government moreover indicated that in its last response it had requested the Committee to advise whether certain actions were permitted during a strike and as regards compulsory contributions to an organization by employees and reminded the Committee of its request.

172. The Committee has not identified in the Government's previous communications any request on permissible actions during a strike and the issue of compulsory contributions made to an organization of employees. The Committee invites the Government to resubmit such a request, if it so wishes.

Case No. 2330 (Honduras)

173. At its June 2005 meeting, the Committee requested the Government to communicate the result of the lawsuit filed by the Minister of Education against the official, Nelson Edgardo Cálix, for slander, libel and defamation, and the result of the application for the protection of constitutional rights entered by the complainant organizations against the judgments, which, it is alleged, deny the right of these organizations to represent their members. Also, while the Committee noted with interest the settlement reached on 10 July 2004 between the Government and the complainant organizations, and in particular the clauses on salaries and the deduction of trade union dues, the Committee requested 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 (see 337th Report, paras. 80-82).

174. In its communication of 25 July 2005, the Government states that the Office of the Attorney-General of the Republic has abandoned the lawsuit begun to suspend the legal personality of COPEMH and COPRUMH. With regard to the fines of 500 lempira imposed on these organizations by the administrative authority, the judicial authority has still not handed down a decision, the trade union officials having ignored the invitation of the Attorney-General's Office to come to an amicable arrangement and thereby to be able to eliminate the fine; according to the Government, these fines are to do with social anarchy and disorder by the education trade union officials. Moreover, the Supreme Court of Justice has not handed down a decision on the appeal for cassation filed by the Ministry of Education personally against the decision that would acquit trade union official Nelson Edgardo Cálix of slander, libel and defamation. Also, the Supreme Court confirmed the other decisions appealed by the complainant organizations through application for protection of constitutional rights and has confirmed the legal decisions that found lack of legitimacy of the organizations to represent the personal rights of their members.

175. The Committee notes this information and notes with interest that the authorities have abandoned a lawsuit intended to suspend the legal personality of the complainant organizations. The Committee requests the Government to keep it informed of any new decisions in relation to this case. The Committee invites the Government and the trade union organizations to find a negotiated solution to the unresolved issues before the judicial authority based on the non-reprisal clause arising out of the conciliation settlement of 10 July 2004 (see 335th Report, para. 878) and on Conventions Nos. 87 and 98, ratified by Honduras and applied fully to teaching staff, according to which the complainant organizations should be able to represent their members without any problem whatsoever. The Committee requests the Government to keep it informed in this respect.

Case No. 1890 (India)

176. The Committee last examined this case, which concerns the dismissal of Mr. Laxman Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), the suspension of 15 FABREU members following a strike, and the employer's refusal to recognize the most representative union for collective bargaining purposes, at its March 2004 session where the Committee requested the Government to rapidly take all appropriate measures to ensure that these pending issues are resolved, in particular as regards Mr. Malwankar's dismissal (see 333rd Report, paras. 77-79).

177. In a communication dated 27 April 2005, the Government informed that Mr. Mukund Parulekar had been under suspension pending inquiry against him and he was receiving subsistence allowance. Initially, he participated in the inquiry, but then he abstained himself from the proceedings and the inquiry was conducted ex parte. The findings of the inquiry are still awaited. In the case of the inquiry against Mr. Sitaran Rathod concerning his misconduct while on duty, disobeying the transfer order and absence from work, the inquiry was completed and the report on the findings of the inquiry was awaited. The Government further indicated that there were two inquiries against Mr. Sham Kerkar: one for his misconduct while on duty and another for disobeying the transfer order and his absence from duty. Both inquiries had been concluded and the findings of the second inquiry were awaited from the inquiry officer. The management of the enterprise had filed an application for permission before the Industrial Tribunal (No. IT-18/99); this case was still pending and the Government could not interfere in the judicial process. Since Mr. Kerkar had not reported to the place of his transfer, he was not entitled to wages for the period of absence. He was free to report to the place of transfer, as his services were not terminated. As concerns Mr. Ambrose D'Souza, the Government submitted that he had resigned and was accordingly paid his dues. No dispute of any nature was pending in this respect. Finally, the Government stated that it had advised the enterprise management to complete the inquiry proceedings within the shortest possible time.

178. By a communication of 6 September 2005, the Government forwarded a copy of the award passed by the Industrial Tribunal on 4 April 2005 concerning a dismissal of Mr. Malwankar. The award ratified a settlement reached by Mr. Malwankar and the management of the Fort Aguada Beach Resort.

179. The Committee notes the statement of the dispute concerning Mr. Malwankar's dismissal. As concerns other pending issues of this case, while noting the information provided by the Government, the Committee deeply regrets that nine years after the complaint was filed, the issue of dismissal and suspension of trade unionists has not been resolved and findings from various inquiries are still being awaited. The Committee recalls that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular lengthy delay in concluding the proceedings concerning reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749). The Committee further considers that, in this case, the absence of judgements and excessive delays in dealing with the issues of dismissals and suspensions created a situation of denial of justice, which is extremely damaging to the exercise of trade union rights. The Committee further recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association (see Digest, op. cit., para. 10). It therefore once again urges the Government to take the necessary measures in order to ensure a rapid conclusion of all the pending issues of this case in conformity with freedom of association principles and requests the Government to keep it informed of all developments.

Case No. 2158 (India)

180. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 80-84). On that occasion, it requested the Government to take all necessary measures so as to ensure that an independent judicial inquiry into the murder of trade union leader, Ashique Hossain, is concluded rapidly, to keep the Committee informed of the grounds on which two apprentices were dismissed from the Pataka Biri Co. and of the progress of proceedings for anti-union discrimination pending before the Calcutta High Court.

181. In its communication of 27 April 2005, the Government indicated that the Home Department of the State Government had examined the Committee's request to institute a judicial inquiry into the circumstances leading to the murder of Mr. Hossain and decided that, since a police case had already been opened and that it was expected that the charges would soon be brought, there was no need for further judicial inquiry.

182. As regards the circumstances under which two apprentices were dismissed, the Government indicated that these two persons were hired as "trainees" and, after expiry of their training period, management decided not to hire them as regular employees. The Appellate Authority under the Beedi and Cigar Workers' (Conditions of Employment) Act, 1966, rejected their appeal as both persons were only trainees and could not be qualified as "employees". This decision of the Appellate Authority was now pending a review.

183. As concerned the investigation into the allegations of serious acts of anti-union discrimination, the Government once again indicated that the complainant union had presented a list of demands which included requests to establish a works committee and to resolve such issues as conditions of appointment, service and overtime wages. The Government indicated that the local labour authorities requested the enterprise management to take steps in order to establish a works committee and to settle outstanding issues. Regarding other allegations, such as discrimination, harassment of workers, etc., according to the Government, the union had failed to furnish particulars of specific cases along with concrete evidence to the Labour Directorate despite several requests made to them in this regard.

184. Finally, with regard to the proceedings before the Calcutta High Court concerning anti-union discrimination, the Government indicated that the Writ Petition No. WP-4449(W) of 2000 in the matter of Mozammel Hague and Others v. State of West Bengal was still pending. The State Government's counsel had already been requested to move the hearing to an earlier date.

185. The Committee notes the information provided by the Government. With regard to the murder of trade union leader, Mr. Ashique Hossain, the Committee once again recalls that the killing of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed light, at the earliest date, on the facts and the circumstances in which such actions occurred and in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 51). The Committee trusts that, following the police investigation referred to by the Government, charges will be rapidly brought against those suspected of the murder of Mr. Hossain, and the guilty persons will punished. It requests the Government to keep it informed of the progress made in this regard.

186. As for the previous request of the Committee to inform it of the circumstances under which two apprentices were dismissed, while noting the Government's argument that these persons were not victims of a dismissal but rather were not hired at the end of their traineeship, the Committee considers that this does not exclude the possibility that these two persons were victims of anti-union discrimination at the hiring stage. It considers furthermore that the legislation should allow the possibility to appeal against discrimination in hiring, i.e. even before the workers could be qualified as "employees". The Committee therefore requests the Government to conduct an independent investigation into the allegations of anti-union discrimination made by these two apprentices and to keep it informed of the outcome.

187. Finally, the Committee requests the Government to continue to keep it informed of the progress of proceedings of anti-union discrimination pending before the Calcutta High Court.

Case No. 2228 (India)

188. The Committee examined this case at its November 2004 meeting (see 335th Report, paras. 881-908) and on that occasion it formulated the following recommendations:

(a) Referring to its recommendation concerning the dismissal of 14 workers at Worldwide Diamonds Manufacturers Ltd, the Committee requests to be kept informed of the progress of the cases brought by those workers alleging anti-union discrimination resulting in dismissals.

(b) The Committee requests the Government to ensure that the principle that complaints of anti-union discrimination are examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned, is observed in the cases of the workers suspended or fined and, if it is confirmed that the imposition of the suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the workers concerned are appropriately compensated.

(c) The Committee requests the Government to take all necessary steps urgently to ensure that an independent and thorough investigation, with the cooperation of the complainant organization, is carried out in relation to the allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant's local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers' homes in order to threaten them so that they return to work. The Committee requests to be kept informed of the investigation's conclusions and, if the allegations are established to be well founded, the measures proposed to be taken in response so as to determine responsibility, punish those responsible and prevent the repetition of such acts.

(d) The Committee requests the Government to keep it informed of the progress of the criminal cases brought by the police against the workers arrested during the strike in January 2002.

(e) The Committee requests the Government to ensure that the CITU Visakhapatnam Export Processing Workers' Union be allowed to take part in negotiations, if it represents a sufficient number of the workers at Worldwide Diamonds Manufacturers Ltd and requests the Government to ensure that all workers in export processing zones have the right to form and join trade unions of their own choosing for the purposes of collective bargaining. The Committee requests to be kept informed in this regard.

(f) The Committee once again requests the Government to ensure that the roles of GRO and DDC are carried out by different persons or bodies.

(g) The Committee requests the Government to confirm that workers and trade unions are able to approach the Court directly without being referred by the state government, and to indicate the ways in which the legislation, and in particular the Industrial Disputes Act 1947, has been amended accordingly.

189. In its communication of 4 December 2004, enclosing comments and observations from the Visakhapatnam Export Processing Workers' Union and a letter addressed to the Minister of Labour, the complainant organization, the Centre of Indian Trade Unions (CITU), stated that no progress was made in implementation of the Committee's recommendations. In addition, the complainant organization contested the Government's previous statement that Mr. Sudhakar was dismissed on the grounds of his poor performance during his traineeship. According to the union, he was dismissed for his trade union activities.

190. As regards criminal cases, the complainant stated that one case (CC No. 257/2002 on charges under sections 506, 352 and 188 of the Indian Penal Code (IPC)) was withdrawn on 24 April 2004, two others (on charges under sections 144 and 151 of the IPC) were still pending. The complainant further submitted that, contrary to the previous statement made by the Government, at no point in time did the workers indulge in violent acts. The complainant explained that, when the government representative from New Delhi visited the VEPZ, workers, through their union representatives, tried to submit a memorandum to him but were refused and told to submit the memorandum outside the VEPZ premises, at Kurmannapalem Junction, 5 kms away from the VEPZ. Once there, the workers were told to go to Srinagar Junction, 1 km away. At Srinagar Junction, police proceeded with arrests under section 144 of the IPC, which made any gathering of workers within the area of 20 km around VEPZ illegal.

191. The complainant also alleged that the suppression of freedom of association was still continuing in all units of the VEPZ. The complainant referred to numerous cases of termination and suspension. More specifically, in the Synergies Dooray Automotive Ltd., an industrial unit of the VEPZ, six workers were dismissed and four were suspended; the right to five sick days per year was also withdrawn. Following the closing of the Madras Knitwear (P) Ltd., another unit of the VEPZ, about 280 workers were left without jobs without any compensation being paid. According to the complainant, in order to avoid the payment of benefits due to the dismissed employees, the company transferred all workers to the Chennai unit. Furthermore, in August 2004, when workers of the Worldwide Diamonds Manufacturing Ltd. demanded payment of July wages, the management locked out the company for three days from 1 to 3 September.

192. In its communication of 28 April 2005, the Government of India forwarded the following observations of the Government of Andhra Pradesh:

- As regards recommendation (a), the cases filed before the Industrial Tribunal against dismissal of 14 workers were at different stages of hearing, in which the Government could not intervene.

- As regards recommendation (b), the management of the Worldwide Diamonds Manufacturing Ltd. contended that workers were suspended or fined due to their poor performance. Mr. Sudhakar was dismissed on the grounds of his poor performance during his traineeship. He lodged a case before the Labour Court, which is now pending.

- As regards recommendation (c), workers in any industry employing 100 or more workers were required to issue a strike notice before resorting to a strike. In the present case, workers went on strike without producing such a notice. Furthermore, the allegations regarding brutal suppression of a strike by excessive police violence were not true. The police had intervened to maintain law and order. However, an independent and thorough investigation, with the cooperation of the complainant organization, would be initiated and if the allegations were found to be true, appropriate action would be taken against those responsible.

- As regards recommendation (d), the Government repeated the circumstances of the arrests.

- As regards recommendation (e), there were no restrictions on the right to collective bargaining imposed on the VEPZ workers. Worldwide Diamonds Manufacturing Ltd. had been instructed to allow the trade union to participate in the negotiation process. A meeting leading to resolving the disputes and the lifting of the lockout was held on 3 September 2004. The Government stated that the minutes of this meeting were annexed; however they have not been received.

- As regards recommendation (f), the role of the Grievance Redressal Officer (GRO) had been preformed by the Deputy Development Commissioner (DDC) of the zone with the view that most of the differences between the management and the workers could be resolved through dialogue and conciliation. However, an individual person or body, in coordination with the State Government, would be entrusted to look after the grievance of the workers, as recommended by the Committee.

- As regards recommendation (g), a new subsection (2) was inserted to section 2A of the Industrial Disputes Act, 1947. It read as follows: "(2) Notwithstanding anything in section 10, any such workman as is specified in subsection (1) may make an application in the prescribed manner direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it in accordance with the provisions of the Act; and accordingly all the provisions of the Act, shall apply in relation to such dispute as they apply in relation to any other industrial dispute." (A.P. Act 32 of 1987). Therefore, disputes relating to discharge, dismissal, retrenchment or otherwise termination of services of an individual worker, such worker may make an application directly to the Labour Court for adjudication of this dispute. The collective disputes were required to be raised first before a conciliation officer (section 4 of the Industrial Disputes Act) and the appropriate Government could refer such disputes for adjudication or arbitration under section 10 and 10A of the same Act.

193. Concerning the complainant's allegation that the Worldwide Diamonds Manufacturing Ltd. resorted to a lockout, the Government indicated that the workers went on a go-slow strike from 28 April 2004 demanding a revision of the incentive scheme and the management locked out the company as from 1 September 2004. The DDC held a joint meeting with the management and the workers' representatives on 3 September 2004. As a result of negotiations, the lockout was lifted.

194. The Government further contested the complainant's allegation concerning the dismissals at Synergies Dooray Automotive Ltd. According to the Government, no worker was terminated or suspended illegally. As concerns the closing of the Madras Knitwear (P) Ltd., the Government indicated that the management had decided to shift the operation from the VEPZ to Chennai due to the lack of sufficient export orders. However, the salaries and bonuses were paid to the workers concerned. The company was holding negotiations with the workers for a better compensation package before the Deputy Commissioner of Labour.

195. The Committee notes the information provided by the complainant and the Government. It regrets that, three years after the complaint was filed, the issue of the alleged cases of anti-union discrimination resulting in imposition of fines, dismissals and suspensions of trade unionists have not been resolved. The Committee recalls in this respect that cases concerning anti-union discrimination should be examined rapidly so that the necessary remedies can be really effective (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 749). The Committee requests the Government to take all necessary measures so as to ensure that the alleged cases of anti-union discrimination are examined promptly and, if it is confirmed that the imposition of the dismissals, suspensions and fines were linked with the legitimate trade union activities of the workers, to take measures to ensure that the dismissed workers are reinstated in their jobs without loss of pay and, if reinstatement is not possible and in cases of suspensions and fines, to ensure that adequate compensation so as to constitute sufficiently dissuasive sanctions is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.

196. The Committee also regrets that, despite its numerous requests, no independent and thorough investigation, with the cooperation of the complainant organization, had yet been carried out in relation to the allegations concerning the brutal suppression of the strike, the detention of hundreds of striking workers and a trade union officer by the police, the prohibition of meetings in the complainant's local office, excessive police violence (caning and chaining of workers), and the visit of police officers to workers' homes in order to threaten them so that they return to work. The Committee notes, however, the Government's commitment in its latest reply to undertake an independent and thorough investigation and requests the Government to keep it informed of the outcome.

197. The Committee regrets that no new information was provided by the Government in respect of the progress of the criminal cases brought by the police against the workers arrested during the strike in January 2002. It further notes that one of the three cases was withdrawn. The Committee therefore once again requests the Government to provide information thereof.

198. The Committee notes the contradictory information received from the complainant and the Government as to the right to collective bargaining of the VEPZ workers and the right of the CITU Visakhapatnam Export Processing Workers' Union to take part in negotiations with the management of the Worldwide Diamonds Manufacturers Ltd. The Committee requests the Government to provide the minutes of the negotiations which, according to the Government, took place in September 2004.

199. Noting the Government's indication that an individual person or body would be entrusted to look after the grievances of the workers, the Committee requests the Government to keep it informed of the measures taken and the progress made in ensuring that the roles of GRO and DDC are carried out by different persons or bodies.

200. The Committee notes the information provided by the Government in respect of the amendment to the Industrial Disputes Act of 1947. The Committee notes, however, that firstly, the right to approach the court directly, without being referred by the State Government, is not conferred on suspended workers and, secondly, that such right is still not conferred on trade unions. The Committee therefore requests the Government to take all necessary measures, including the amendment of the Industrial Disputes Act of 1947, so as to ensure that suspended workers as well as trade unions could approach the court directly.

201. As regards the recent allegations of the complainant, the Committee notes that, following the negotiations between the management and the workers' representatives, the lockout at the Worldwide Diamonds Manufacturing Ltd. was lifted. The Committee further notes the contradictory information on the alleged dismissals and suspensions at the Synergies Dooray Automotive Ltd. The Committee therefore requests the Government to conduct an independent inquiry to thoroughly and promptly consider this allegation and, if it appears that the dismissals and suspensions occurred as a result of involvement by the workers concerned in the activities of a union, to ensure that those workers are reinstated in their jobs without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard. Finally, the Committee requests the Government to keep it informed of the result of the negotiations held with the workers of the Madras Knitwear (P) Ltd. before the Deputy Commissioner of Labour.

Case No. 2139 (Japan)

202. The Committee last examined this case at its March 2003 meeting. It concerns allegations of preferential treatment granted to certain workers' organizations in the appointment of nominees to the central and prefectoral labour relations commissions (PLRC), and various other central and local councils. The Committee noted with interest that the number of worker members coming from trade unions affiliated with the complainant organization and appointed to the PLRCs had been raised, but noted with regret that this had not been the case as regards appointments to the Central Labour Relations Commission (CLRC). The Committee expressed the hope that the Government would take remedial measures in that respect for the 28th term of the CLRC, or before that, should worker member positions become vacant in the meantime. It requested the Government to keep it informed of developments (see 330th Report, para. 122).

203. In its communication dated 27 February 2003, the complainant, the National Confederation of Trade Unions (ZENROREN), recalled that no ZENROREN members were appointed for the 27th term of the CLRC and that the Government stated at the time that it had chosen "persons suitable to represent the interests of workers in general ... taking various criteria into consideration" while ignoring the Committee's recommendations. This showed that the Government had not changed its attitude and failed to take objective criteria into account.

204. In its communication of 17 March 2005, ZENROREN states that, along with the National Liaison Council of Trade Unions (ZENROKYO), they nominated two candidates for the 28th term of CLRC, but all workers appointed on 16 November 2004 were from RENGO ranks, thereby excluding ZENROREN candidates. According to the complainant, the Government stated: that those "more fit for representing the interests of workers in general" are selected and appointed on the basis of a comprehensive evaluation of various factors; that the final decision rests with the Prime Minister; and that the criteria would remain unchanged for the 29th term of the CLRC. The Government also cited the 5.9 to 1 ratio between RENGO and ZENROREN memberships. ZENROREN filed a lawsuit in Tokyo district against workers' appointments for the 28th term of CLRC.

205. In its communications of 6 January and 28 April 2005, the Government replies that as regards workers' appointments for the 28th term of the CLRC, the competent persons to represent workers' interests in general were appointed by the Prime Minister, based on recommendations made by trade unions, by taking various factors into comprehensive consideration, including the organizational situation of each trade union. As a result all 15 workers appointed for the 28th term were RENGO affiliates. The Government points out that some figures provided by the complainant in their March 2005 communication are not appropriate because they take into account public employees in the non-operational sector, whereas organizations established by public employees in the non-operational sector cannot recommend any candidates as CLRC labour members. As regards the lawsuit filed by ZENROREN, the Government states that neither this union nor KOKKOREN (Japan Federation of National Public Employees Union) notified a recommendation on the nomination of candidates. The Government also denies that the competent ministry stated that the criteria would remain unchanged for the 29th term of the CLRC; the actual answer was that it would depend on the situation at the time. As for PLRCs, the Government states that ZENROREN now has affiliates in eight prefectures; two more than at the end of 2002.

206. The Committee notes from the information provided by the complainant and the Government that no ZENROREN affiliate was appointed as worker member for the 28th term of the CLRC, contrary to the hope expressed by the Committee in its 330th Report. The Committee recalls the rationale of its previous recommendation in this context, i.e. the necessity to afford fair and equal treatment to all representative organizations, with a view to restoring the confidence of all workers in the fairness of the composition of labour relations commissions and other similar councils, that exercise extremely important functions from a labour relations perspective (328th Report, paras. 444-447). The Committee therefore urges the Government to take these principles into consideration when appointing worker members for the 29th term of the Central Labour Relations Commission (CLRC), to keep it informed of developments in this respect, and to provide it with the decision of the Tokyo District Court as soon as it is issued.

Case No. 2304 (Japan)

207. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 972-1019). On that occasion the Committee made the following recommendations:

(a) The Committee takes note of the fact that the seven trade union officers and members accused of coercion have been released while their trial is pending at the Tokyo District Court. It requests the Government to keep it informed of the progress of the judicial proceedings and to communicate the final judgement once rendered.

(b) Noting that the searches and confiscations against the complainant trade union and its members have apparently ceased, the Committee requests the Government to take all necessary measures in order to ensure that any remaining confiscated items which do not have a direct connection to the facts of the case are immediately returned to the complainant and to keep it informed in this respect. It also requests the Government to ensure that the judicial procedures under way do not interfere in the free exercise of trade union activities.

(c) The Committee considers that the police should abstain from any declaration which might damage the reputation of a trade union as long as the matters in question have not been confirmed by the judicial authorities.

208. In its communication dated 23 February 2005, the complainant, Japan Confederation of Railway Workers' Unions (JRU), submitted additional information on this case. According to the complainant, the Government's reply to the complaint, which was submitted to the Committee for examination at its November 2004 session, involved serious misstatements and false statements which have been brought to the attention of the Tokyo District Public Prosecutor's Office. In particular, the complainant alleged that the Government referred in its response to the prosecution's case as if it were a proven fact, although the incidents were still under investigation and had not been confirmed by the judicial authorities. Furthermore, the Government had given a different description from the one given by the victim and the police in court regarding the time when the investigation of the Urawa Electric Train Depot Incident (coercion case) started. The Government had stated that the investigation had started after the submission of the incident report whereas the Tokyo Metropolitan Police Department had in reality begun an investigation the previous year and the police had "encouraged" the victim to submit the incident report. The complainant further alleged that, after the Government failed to reply to its protests on the above, it decided to file charges against an unidentified government official on 29 November 2004 for violation of article 156 of the Penal Code (forgery, etc. of official documents) and article 158 (uttering etc., of forged official documents). The Tokyo District Public Prosecutor's Office duly received the indictment on 13 December 2004. Finally, the complainant further alleged that the Government explained to the MPs of the Democratic Party of Japan (DPJ) that, after the National Police Agency had written the document, the Health, Labour and Welfare Ministry had modified it and had submitted it to the ILO via the Foreign Ministry, without cabinet approval or a final decision of the ministers in charge.

209. The complainant further stated that the National Police Agency, which was designated by the Government as in charge of the implementation of the Committee's recommendations, had not responded to its request for an immediate implementation of the Committee's recommendations. Although an official of the Health, Labour and Welfare Ministry had indicated to the members of parliament of the Democratic Party of Japan that: "We respect the recommendations and plan to implement what we can now", the officials of the Justice Ministry and the National Police Agency made it clear that they had no intention of returning any more confiscated items, stating that: "We have returned the remaining unneeded confiscated items" and that "We have returned the confiscated items which have no connection to the investigation"; they also said that, regardless of the Committee's recommendations, they were the ones to decide how the confiscated items would be handled; finally, they were not sure whether the Justice Ministry and the National Police Agency were officially informed of the Committee's recommendations. The complainant attached a report by a member of parliament of the House of Representatives on the hearings by concerned government ministries on the Committee's recommendations.

210. According to the complainant, the Tokyo District Public Prosecutor's Office returned 124 items regarding the case of coercion on 19 January 2005 after a claim made on 15 December 2004. The Metropolitan Police Department returned one of the confiscated items regarding the case of violation of the Law on Punishment against Violent and Other Acts on 15 December 2004, after a claim made on 7 December 2004. The unreturned confiscated items regarding the case of coercion are 1,190 out of 1,870 and 136 out of 1,039 for the case of violation of the Law on Punishment against Violent and Other Acts. These unreturned items for the case of coercion include, according to the complainant: a subscribers' list for the union magazine in the JR Urawa Electric Train Depot; an address list of the JTUC-Rengo Urawa district members; an address list of the JREU Omiya District Office officials; a list of union members; the 2002 JRU Executive Committee constituents and role sharing; a list of the first graduates of the JNR Central Railway Technical Training Centre; four copies of the JREU Regulation and Rule Book, 2002 edition; and a copy of labour agreements of April 2002. The unreturned items for the case of violation of the Law on Punishment against Violent and Other Acts include: a passbook of ordinary deposit in the Fuji Bank (fund for international exchange); documents of the ninth general shareholders' meeting of Satsuki Planning, Ltd.; an auditor's report for Satsuki Planning, Ltd. of 2002; and a list of officials and staff of Satsuki Planning, Ltd. of 2003.

211. Regarding the proceedings in the case of violation of the Law on Punishment against Violent and Other Acts, the complainant stated that, on 29 January 2004, the JRU launched a legal action for state liability for compensation against unreasonable search and confiscation. The trial was ongoing at the Tokyo District Court. On 26 January 2005 the Public Safety Department of the Metropolitan Police Department sent the file concerning three officials of the JRU to the Tokyo District Prosecutor's Office alleging violation of the Law on Punishment against Violent and Other Acts. The Tokyo District Prosecutor's Office summoned the three officials for interrogation. The prosecutor said it would take about a month to reach a conclusion on whether they would be prosecuted or not.

212. As for the status of the proceedings in the coercion case, the complainant stated that 29 public hearings had been held from 25 February 2003 to 16 February 2005. During this period three judges were replaced (the first associate judge in the 18th hearing on 23 April 2004, the presiding judge in the 22nd hearing on 27 August 2004, and the second associate judge in the 29th hearing on 16 February 2005). The complainant stated that it was unusual to have all the judges in a case replaced during the trial, especially as there were now no judges who had actually examined the alleged victim in the court hearings. The complainant was concerned that this could influence the fairness of the trial.

213. In its communication dated 7 March 2005, the Government indicated with regard to the coercion case that the trial was still in progress and currently the defence counsel was examining the defendants. The trial was progressing with considerable attention to the rights of the persons involved in the case. The seized items in this case were being returned. As indicated during the initial examination of the case, the Metropolitan Police Department had returned 113 seized items to their original possessors and the Tokyo District Public Prosecutor's Office had returned 443 seized items in April 2004. Moreover, in January 2005, after the Committee's recommendations, the Tokyo District Public Prosecutor's Office returned 124 seized items to their original possessors. Thus, out of 1,870 goods and documents seized after a strict judicial examination by a judge, a total of 680 items had already been returned. The Government indicated that it would, as it had in the past, keep returning promptly to their original possessors the seized items that became less important for proving the case, and would keep informing the Committee of the progress of the judicial proceedings. The Government finally indicated that it would transmit its response on the allegations of the complainant in an additional document.

214. In a communication dated 17 May 2005, the Government provided its response with regard to the allegations contained in the complainant's communication dated 23 February 2005. The Government indicated that, in its initial observations on this case, it had obviously not described the facts as confirmed by the judicial authorities but rather the result of the investigation of the Tokyo Metropolitan Police Department. Regarding the time when the investigation of the Urawa Electric Train Depot Incident (coercion case) started, the Government indicated that the police was not restricted in law or in practice from carrying out the necessary investigation on the incident, notably by asking the victim to explain the circumstances of the incident, before the victim's submission of an incident report in writing to the police. In fact, the Government had never mentioned in its observations submitted to the ILO that the investigation had started only after the submission of an incident report to the police. With regard to the allegations concerning the lack of cabinet approval of the observations before they were sent to the Committee, the Government explained that, in Japan, the ministers divided among themselves the administrative affairs and were in charge of their respective share as competent minister based on the Cabinet Law and the National Government Organization Law. The Ministries of Justice, Foreign Affairs, Health, Labour and Welfare and the National Police Agency had drafted and finalized the observations to the ILO, in accordance with their responsibilities and procedures. Therefore, the observations submitted to the ILO on 25 May 2004 were the official observations of the Japanese Government.

215. With regard to the return of the confiscated items, the Government indicated that it had returned and would continue to return the items promptly to their original possessors when they were deemed to be less important for proving a case. With regard to the Urawa Electric Train Depot Incident (coercion case), the Tokyo District Public Prosecutor's Office had returned 332 items to their original possessors on 31 March 2005. Therefore, out of the 1,870 goods and documents seized, a total of 1,013 items had been returned. As for the other seized items, the Tokyo District Public Prosecutor's Office would return them as and when it was found appropriate to do so, in the process of the criminal trial. With regard to the Tokyo Station Incident (case of violation of the Law on Punishment against Violent and Other Acts), the Government indicated that, out of 1,039 seized goods and documents, 1,005 had already been returned to their original possessors. Out of the 34 remaining items, 22 goods and documents had been seized again by the Metropolitan Police Department because of their necessity in the investigation of another case, conducted after strict judicial examination in accordance with the relevant provisions of the Code of Criminal Procedure. The other 12 goods and documents could not be returned, because their original possessors refused the offer of return. Finally, all the 1,251 goods and documents seized in relation to the case of trespassing had been returned to their original possessors.

216. Finally, the Government indicated that the Tokyo District Public Prosecutor's Office had decided on 16 March 2005 to suspend the prosecution of the three suspects for the Tokyo Station Incident (case of violation of the Law on Punishment against Violent and Other Acts). With regard to the legal action launched by the complainant JRU for state liability and compensation, the Government indicated that the case was currently being heard at the Tokyo District Court. As for the replacement of three judges in charge of the coercion case, the Government indicated that, in accordance with the Code of Criminal Procedure, where judges were changed subsequent to the commencement of a public trial, the procedure should be handed over to the new judges in order to continue. In this case as well, the procedure was continued with new judges in accordance with the provisions of the Code of Criminal Procedure.

217. The Committee notes with interest from the Government's communication of 17 May 2005 that the Tokyo District Public Prosecutor's Office decided on 16 March 2005 to suspend the prosecution of the three suspects for the Tokyo Station Incident (case of violation of the Law on Punishment against Violent and Other Acts). Earlier on in the year, on 26 January 2005, the Tokyo Metropolitan Police Department had sent a file concerning these officials to the Prosecutor's Office, for violation of the Law on Punishment against Violent and Other Acts. The Committee requests the Government to clarify the exact scope of the suspension of the prosecution and in particular, to indicate whether all charges against the three suspects have been dropped.

218. With regard to the progress of the proceedings concerning seven trade union officers and members accused of coercion (see recommendation (a) above), the Committee requests the Government to continue to keep it informed of the progress of the judicial proceedings and to communicate the final judgement on this case once rendered.

219. With regard to the return of the confiscated items (see recommendation (b) above), the Committee first notes with interest from the Government's communication of 17 May 2005 that all the 1,251 goods and documents seized in relation to the case of trespassing have been returned to their original possessors. The Committee further notes however, that the Tokyo District Public Prosecutor's Office still retains several items and in particular: (i) 857 items linked to the coercion case which will eventually be returned according to the Government, as the proceedings continue and the items become less important for proving the case; and (ii) 34 items in relation to the case of violation of the Law on Punishment against Violent and Other Acts, 22 of which were seized again by the Metropolitan Police Department because of their necessity in the investigation of another case, conducted after strict judicial examination in accordance with the relevant provisions of the Code of Criminal Procedure; the other 12 goods and documents cannot be returned, according to the Government, because their original possessors refuse the offer of return.

220. The Committee requests the Government to ensure that all items confiscated in relation to the cases of coercion and violation of the Law on Punishment against Violent and Other Acts be returned in their entirety at the earliest possible moment and to continue to keep it informed of progress made in this respect. The Committee further requests the Government to provide details on the "other case" in relation to which 22 items which had been initially seized in the framework of the investigation of the Tokyo Station incident (case of violation of the Law on Punishment against Violent and Other Acts), had to be confiscated once again.

221. The Committee also notes from the Government's report that the proceedings initiated by the complainant JRU for state liability and compensation for unreasonable search and confiscation are currently under way at the Tokyo District Court. The Committee requests the Government to keep it informed of developments in this respect and to communicate the court's judgement once rendered.

Case No. 2266 (Lithuania)

222. The Committee last examined this case concerning allegations of government interference in the organizational activities of trade unions, and more specifically the distribution of trade union assets in the context of a transition from a trade union monopoly regime to a situation of trade union pluralism at its November 2004 meeting (see 335th Report, paras. 124-126). On that occasion, it urged the Government, once again, to rapidly hold further discussions with all interested parties with a view to finding a satisfactory solution for all concerned and to keep it informed of developments.

223. In a communication dated 23 August 2005, the Government informed that civil cases concerning trade union property brought by the Office of the Prosecutor-General had been dropped and the distraints cancelled. The Government therefore considered that the complaint of the Lithuanian Trade Union Confederation lost its ground and purpose.

224. The Committee notes this information with satisfaction.

Case No. 2381 (Lithuania)

225. The Committee last examined this case at its March 2005 meeting (see 336th Report, paras. 555-575). On that occasion, it invited the Government to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property so that while some of the assets could be recovered by the Government or their original owners, affected trade union organizations were guaranteed the possibility of effectively exercising their activities in a fully independent manner. It requested the Government to provide information on the development of the situation and, in particular, on any agreement reached in this respect. Furthermore, considering that consultations should be held with all appropriate trade unions on any draft legislation on the nationalization of trade union assets prior to the introduction, the Committee requested the Government to provide a copy of any such new legislation.

226. In its communication of 19 April 2005, the complainant organization, the Lithuanian Trade Union (LTU) "Solidarumas", stated that by the court decision of 11 April 2005, its assets in Druskininkai (sanatorium "Nemunas") were seized by the State Property Fund (the successor of the Special Fund for support of the existing and new trade unions). The complainant indicated that the sanatorium was transferred to the union on 17 September 2004 by the Special Fund in accordance with the regulation of the Fund and the law in force. In winter 2004-05, the union had organized an activity in the sanatorium "Nemunas" concerning its heating and maintenance. Works for renovation of the sanatorium were scheduled and a planning for rehabilitation of employees' health was prepared. Therefore, the LTU "Solidarumas" considered that the action of the State Property Fund, a public authority, was an intervention in trade union activities.

227. The complainant further alleged the lack of reaction on behalf of the Government following a fire that took place on 2 December 2004, which destroyed half of the building of the Cultural Palace of Trade Unions in Vilnius and interrupted the activities of the union. The complainant indicated that the International Confederation of Free Trade Unions (ICFTU), having evaluated the destruction of the trade union's working premises, had addressed the Prime Minister and requested him to take the necessary measures so as to ensure that the trade union movement was protected from criminal offences. Instead, the investigation of the criminal case has been protracted, the damage made to the trade union has not been addressed and the union has been denied the support it had requested for the liquidation of the consequences of the fire.

228. Finally, the LTU "Solidarumas" alleged that the Vilnius District Prosecutor had brought two cases against the union on the ground of "protection of the public interest". According to the complainant, that was done in an attempt to split the trade union from the inside.

229. In its communication of 23 August 2005, the Government explained that the Special Fund for support of the existing and new trade unions established in 1993 was liquidated by the resolution of the Seimas of the Republic of Lithuania No. IX-2441 of 14 September 2004, whereby the Government or an institution authorized by it was appointed to perform the functions of liquidator of the Fund. The State Property Fund became the successor of the Special Fund by the Government's resolution No. 98 of 26 January 2005. During a review of the documents taken over, it had been noted that the Council of the Special Fund decided, at its meeting held on 7 June 2004 (minutes No. 128), to recognize the sanatorium Nemunas and the Druskininkai centre for therapeutic physical culture as the property of the LTU "Solidarumas". The property was handed over on 17 September 2004; a certificate to this effect was issued on the same day.

230. The Government pointed out, however, that following the decision of 30 September 2003 by the Constitutional Court, the Council of the Special Fund was neither entitled to make any decision recognizing the real estate held by it as property of the LTU "Solidarumas", nor to transfer such property. Indeed, this court judgement held that assets that had been managed, before the restoration of Lithuania's independence, by state trade unions, which were acting in Lithuania as part of the trade union system of the USSR, was property of the Lithuanian State. In order to carry out their constitutional functions, trade unions may hold assets by the right of ownership, however, trade unions were not economic entities and their purpose did not include economic activities or public administration, therefore state institutions may not transfer state-owned assets to the ownership of trade unions. Therefore, the court recognized that Article 2 of the Law "On the Establishment of the Property of the Sanatorium-Resort Establishments and Rest-Houses Which Used to Be Possessed by Former Trade Unions of the Lithuanian SSR" of 8 June 1995, under which Nemunas sanatorium and the Druskininkai centre for therapeutic physical culture had been transferred to the Special Fund, was in contravention with the Constitution. On the basis of such circumstances, the State Property Fund, in order to protect the interests of the State, had filed an application with the Vilnius District Court for invalidation of the decision adopted by the Council of the Special Fund on 7 June 2004 and of the real estate transfer transaction. Therefore, in the Government's opinion, these actions by the State Property Fund could not be interpreted as unlawful or as hindering trade union activities.

231. The Committee notes this information. It regrets, however, that the Government did not provide any information with respect to its previous recommendation to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property. The Committee recalls that it made the above recommendation after a substantive examination of the issues involved in this complaint, while taking into account the particular circumstances of the case and the importance of preserving harmonious industrial relations in the country. The Committee notes that the issue of assignment of property continues to raise conflicts. The Committee therefore urges the Government, once again, to rapidly hold discussions with all trade union organizations concerned with a view to finding a satisfactory solution for all concerned and to keep it informed of developments.

Case No. 2109 (Morocco)

232. The Committee last examined this case, which concerns dismissals of eight trade unionists at the Fruit of the Loom company as well as acts of anti-union repression following the creation of a trade union office, at its November 2004 meeting (see 335th Report, paras. 136-139). On that occasion, the Committee noted the information with regard to the four workers who were dismissed, requesting the Government to keep it informed of the situation regarding the two other dismissed workers. It also requested the Government to keep it informed of the status of the proceedings regarding the records entered by the Labour Inspectorate against the company, as well as the final decisions of the proceedings brought by Mr. Abdellah Sainane and Mr. Lahcen Toufik.

233. In a communication dated 3 February 2005, the Government stated that with regard to the records entered by the Labour Inspectorate concerning the collective dismissal of workers belonging to the trade union, the Appeal Court of Rabat presented the case for decision on 27 January 2005. As this concerns unauthorized collective dismissal, the Royal Gendarmerie is currently carrying out an inquiry. With regard to the decisions concerning Mr. Abdellah Sainane and Mr. Lahcen Toufik, the Government states that the Court of First Instance in Salé has handed down decisions in their favour and sends copies of these.

234. The Committee notes with interest the information provided by the Government and hopes that the decisions concerning Mr. Abdellah Sainane and Mr. Lahcen Toufik will be implemented promptly. It notes, however, that the information regarding two of the eight dismissed workers has not been provided. In this regard, the Committee urges the Government to provide the information relating to the situation of the two missing workers.

235. Furthermore, the Committee hopes that the decision of the Court of Appeal of Rabat regarding the records entered by the Labour Inspectorate will be sent to it as soon as possible. As this regards unauthorized dismissal, the Committee also requests the Government to keep it informed of the outcome of the inquiry being carried out by the Royal Gendarmerie.

Case No. (Morocco)

236. The Committee last examined this case, which concerns measures taken by the Caisse Nationale du Crédit Agricole (CNCA) against several workers represented by the National Union of Bank Employees (SNB/CDT) for having exercised trade union activities or taken part in a strike, at its November 2004 meeting (see 335th Report, paras. 140-143). At that time, the Committee requested the Government to submit to it: (1) the decision of the Court of First Instance concerning the case filed against the CNCA by 34 temporary workers; (2) the decision of the disciplinary council concerning the dismissal of Mr. Chatri Abdelkader; and (3) the two judicial decisions concerning the complaints filed against the CNCA by the same Mr. Abdelkader. The Committee again requested the Government to ensure that inquiries were opened promptly to determine whether the striking workers, including the members of the trade union executive committee named by the complainant organization (namely, Mr. Jamal Boudina, Mr. Ahmed Arrout, Mr Abdessamad Mammad, Mr. Mustapha Hafidi, Mr. Mustapha Kounech, Mr. Mahjoube Ennaj, Mr. Said Benjamae, Mr. Lahcem Chkha, Ms. Naja Mimouni and Ms. Ouafae Chmaou) were sanctioned for their participation in the strike of 13 and 14 June 2001. If the anti-trade union nature of those measures - or of some of them - was demonstrated, the Committee requested the Government to take steps to ensure that the workers concerned were immediately reinstated to their positions of employment with payment of the salaries owing, or, if reinstatement was not possible, that adequate compensation should be paid to the workers concerned.

237. In a communication dated 11 May 2005, the Government transmitted a letter from the Director-General of the CNCA, dated 28 April 2005. This letter states that the Crédit Agricole acted favourably to the requests for compensation of 27 of the 34 workers and they were paid a total amount of 890,000 dirham. With regard to the situation of Mr. Chatri Abdelkader, the Government sent a copy of the decision on his dismissal, as well as copies in Arabic of the verdicts of the Administrative Division of the Supreme Court (27 June 2002), the Administrative Court of Rabat (10 October 2002), the Court of First Instance of Rabat (25 March 2004) and the Court of Appeal of Rabat (24 August 2004).

238. The letter also states again that the transfers of the 10 workers mentioned above are not a result of sanctions for their participation in the strike, but a result of decisions taken with regard to the requirements of the department, and that the transfers had, in three cases, been accompanied by promotions. It stated that other transfers had taken place within the same province or the same city and, in one case, at the request of the person involved. It also mentioned corroboration by some of the workers concerned who, at the request of the head of the human resources management department of the Crédit Agricole of Morocco, stated that they "had no problem" with the Crédit Agricole.

239. The Committee notes this information and the legal and administrative decisions sent by the Government relating to the situation of Mr. Chatri Abdelkader. These decisions are currently being translated and therefore the Committee is currently not able to come to any definitive conclusions. The Committee notes, however, that the decision of the Court of First Instance concerning the case filed by the 34 temporary workers against the CNCA has not been sent. The Committee urges the Government to send a copy of the decision handed down in this regard.

240. With regard to the situation of the striking workers and the reasons stated with regard to the steps taken concerning the 10 trade union officials referred to by the complainant organization (see 333rd Report, para. 603), the Committee notes that the Government has not provided information on the opening of an independent inquiry to determine whether the striking workers, including the trade union officials named by the complainant organization were the target of sanctions following their participation in the strike of 13 and 14 June 2001. The Committee requests the Government to keep it informed on this issue.

Case No. 2281 (Mauritius)

241. The Committee last examined this case, which concerns the need to revise the Industrial Relations Act (IRA) in conformity with freedom of association principles, during its March 2005 meeting (336th Report, paras. 79-81). On that occasion, the Committee took note with interest of the approval of the ratification of Convention No. 87 and the ongoing preparation of new legislation to revise the IRA and strongly encouraged the Government to maintain consultations with the social partners during the revision process, reiterating its hope that this process would be concluded soon so as to bring the law into full conformity with Conventions Nos. 87 and 98.

242. In its communication dated 22 April 2005, the Government furnished a detailed chronology of the efforts made to adopt legislation revising the IRA. In particular, in June 2003 a technical committee was set up at the Ministry of Labour, Industrial Relations and Employment to work on the replacement of the IRA. The Committee started consultations with the social partners.

243. At a first stage in the consultations, a meeting was held with the social partners, who were invited to submit their proposals in writing. The 13 federations of trade unions submitted a common memorandum on 30 January 2004 and the Mauritius Employers' Federation submitted its proposals on 26 March 2004. At a second stage of consultations, the Ministry invited the ILO to provide technical assistance. A tripartite seminar was held from 8 to 11 July and broad consensus was reached with the help of the ILO experts on issues such as the right to strike, dispute settlement procedures and the autonomy of trade unions. The 13 federations of trade unions and the Mauritius Employers' Federation were invited to participate in the seminar. Several trade union leaders did not attend or participated only in a few sessions of the seminar.

244. At a third stage of consultations, in November 2004, a White Paper on new industrial relations framework-making proposals for a new legislation to replace the IRA was circulated publicly for national debate. The federations of trade unions and the employers' organization, as well as any other interested party, were invited to submit their recommendations within a period of two months. They submitted their views. Only a few members of the public and one political party transmitted their comments and suggestions. At a fourth stage of consultations, a meeting was held with the trade unions to explain to them the various proposals contained in the White Paper and to listen to their observations. In December 2004, the Mauritius Employers' Federation submitted its views. The federations of trade unions submitted their views in a common memorandum but, at the same time, burnt the White Paper publicly. This brought an end to the consultations.

245. A fifth stage of consultations started in January 2005, when the Government again solicited the assistance of the ILO to resume consultations and continue the discussions on the proposed new legal framework with a view to building consensus. An ILO delegation held meetings with the trade unions and the Mauritius Employers' Federation, as well as the Prime Minister, and made a number of recommendations to the technical committee and various ministries that were included in the draft bill.

246. Following the ILO technical assistance mission, the Government decided to ratify Convention No. 87 in February 2005. The decision was implemented immediately and the instruments of ratification have already been deposited at the ILO. The decision to ratify the Convention reaffirmed the Government's good faith and strong commitment to replace the IRA. The immediate ratification of the Convention was one of the main requests of the trade unions. At a sixth stage of consultations, three meetings were held with the trade unions and the employers' organization separately to continue the consultations so that the final proposals could be drawn up for the preparation of a draft bill. Subsequently, a draft bill was prepared and a meeting was held in March 2005 with the trade unions and the employers separately to inform them of the final proposals which would be incorporated in the bill. The suggestions made by the trade unions were noted and some of them were included in the bill. The employers' organization was informed that its persistent request to dismantle the National Remuneration Board would not be considered, as it would create social problems given that there was no consensus on the proposal.

247. The bill was circulated to all trade unions and employers' organizations on 9 April, as soon as the Government had approved it. The employers' organizations held a meeting on 11 April and submitted a memorandum to the Government on the same day. They opposed the bill radically and reiterated their requests to dismantle the National Remuneration Board outright and to allow collective bargaining with non-unionized workers (text attached). As regards the trade unions, two federations made verbal proposals for minor amendments to the bill. Their proposals were taken into consideration and amendments were brought immediately, though the draft bill had already been submitted to the National Assembly. On 12 April, the bill was moved for first reading in the National Assembly (copy attached). On 13 April, the federations of trade unions wrote a letter (attached) to the Prime Minister asking that the debates on the bill be postponed to the following week, as the trade union movement was organizing a workshop on Friday, 15 April. This request for postponement put the enactment of the bill in jeopardy, as it was public knowledge that the National Assembly would be dissolved by 22 April, in view of the forthcoming general elections. The Minister of Labour, Industrial Relations and Employment nevertheless informed the unions that he was at their disposal to reply to any of their queries (letter attached). However, one trade union federation chose to circulate a petition in the National Assembly, asking that the bill should not be enacted without amendments (text attached), whereas others made diverse press statements decrying the bill as being pro-employer, repressive, denying the right to strike and being worse than the existing IRA, etc. Some stated that they were seeking the support of political parties of the opposition to stand against the enactment of the bill. Others raised objections on issues that had already been thrashed out during previous consultations and on which agreement had already been reached (text attached). Diverse and contradictory statements were made by the various trade unions.

248. In view of the request of the trade unions, the Government had no choice but to postpone the enactment of the bill. In his statement in the National Assembly, the Prime Minister took the firm commitment that he would personally look at the requests for amendment and ensure that the bill was enacted after the elections (text attached).

249. While duly noting the detailed information provided by the Government on the efforts made to prepare and pass through the National Assembly a draft bill to replace the IRA which would take into account the Government's recent international commitments through the ratification of Convention No. 87, the Committee regrets that these efforts did not result in the adoption of legislation that would be based on broad consensus among the social partners. Noting with interest the Government's recent ratification of Convention No. 87, the Committee and trusts that it will vigorously pursue its efforts to bring the IRA into full conformity with Conventions Nos. 87 and 98. The Committee would like to emphasize, once again, the importance that should be attached to full and frank consultations taking place on any questions or proposed legislation affecting trade union rights (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 927) and trusts that the Government and the social partners will continue to engage fully in such consultations with the aim of building consensus and preparing the ground for future legislation amending the IRA.

250. The Committee requests to be kept informed of further steps taken with a view to bringing national law into conformity with Conventions Nos. 87 and 98, ratified by Mauritius, and progress made in this respect. Noting that the technical assistance of the Office has been useful in the context of generating social dialogue on the possible future amendment of the IRA, the Committee would like to remind the Government that such technical assistance remains at its disposal if it so wishes.

Case No. 2234 (Mexico)

251. The Committee last examined this case at its November 2004 meeting (see 335th Report, paras. 156-158). On that occasion, the Committee stated that it hoped that the judicial authority would announce a decision as soon as possible and that it would take into account the principles of freedom of association with regard to the charges against Mr. Fernando Espino Arévalo, General Secretary of the Metropolitan Rail Transport Workers' Union (SMTSTC), and other participants in the industrial action carried out on 8 August 2002 in the metropolitan passenger train.

252. In a communication dated 18 May 2005, the Government provided the information given to it by the Federal District Public Prosecutor's Office that, on 18 March 2005, the head of the Fiftieth Investigative Office of this department stated that the application to begin legal proceedings under Case No. FACI/50T/1008/02-08 against Mr. Fernando Espino Arévalo for coalition of public servants and attacks on means of communication was submitted to the Secretary-General of the Chamber of Deputies of the LVIII Session of the Honourable Congress of the Union on 3 September 2002 and was ratified on 5 September 2002, and this is currently awaiting decision.

253. The Committee notes this information and requests the Government to keep it informed of the final decision on the legal proceedings currently under way against trade union official Mr. Fernando Espino Arévalo and other participants in the industrial action of 8 August 2002 in the metropolitan passenger train.

Case No. 2347 (Mexico)

254. At its March 2005 meeting, the Committee had declared that it expected the judicial authority fully to take into account the principles cited in its conclusions concerning the registration of the complainant organization (the Trade Union of Associated Football Players of Mexico), and had requested the Government to communicate any ruling or decision taken in relation to the registration of the complainant organization (see 336th Report, para. 630).

255. In a communication dated 6 September 2005, the Trade Union of Associated Football Players of Mexico informed the Committee that it had been registered following a decision of the Local Council of Arbitration and Conciliation dated 8 July 2005 (enclosed with its communication) and thanks the Freedom of Association Committee for its contribution to the registration.

256. In a communication dated 23 September 2005, the Government confirms this information.

257. The Committee notes this information with satisfaction.

Case No. 2274 (Nicaragua)

258. The Committee examined this case at its November 2004 meeting (see 335th Report, paras. 1097 to 1126) and made the following recommendations: "As regards the dismissal of a number of trade union officials, observing that the dismissals of Mr. Edwin García and Ms. Blanca Alejandrina Aráuz took place in 2001 and 2002, the Committee deplores the delay in the judicial proceedings and trusts that if the judicial authority confirms the anti-trade union character of those dismissals, both officials will be reinstated without delay and without loss of pay. If the judicial authority determines that reinstatement is not possible, both officials should be fully compensated. The Committee requests the Government to keep it informed thereof. The Committee further requests the Government to inform it if Ms. Suárez was in fact reinstated in her post."

259. In a communication dated 17 May 2005, the Government rejects the Committee's view about the judicial proceedings provided for by the law. There has been no delay; these proceedings are a matter for the Nicaraguan judicial authorities, which are competent to carry out this work. On the other hand, as regards the dismissals of Edwin García and Blanca Alejandrina Aráuz, which took place in 2001 and 2002 respectively, the Government notes that it has had no information from the complainant, which is actively promoting the case before the labour courts. The Committee regrets that despite the time that has passed, the judicial authorities have not made a ruling on these dismissals. The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings. The Committee also once again requests the Government to inform it if Ms. Suárez was in fact reinstated in her post.

260. "As regards the alleged restrictions on collective bargaining, the Committee requests the Government to adopt the necessary measures to ensure in the future the implementation of the obligation to encourage and promote collective bargaining provided in Article 4 of Convention No. 98 and observance of the principle of good faith in collective bargaining. The Committee recalls to the Government that the technical assistance of the ILO is available in this regard." The Government states that there are no obstacles to the negotiation of a collective agreement between a trade union and an employer or employers' organization. In Nicaragua, employers and workers have mechanisms of conciliation and mediation available to them to solve any socio-economic and legal disputes, whether individual or collective, which may arise regarding labour relations, with a view to solving socio-economic disputes through the conclusion or revision of collective agreements. The Ministry of Labour Directorate of Collective Bargaining and Individual Conciliation analyses, approves and registers collective agreements; the Government thanks the Committee for its offer of technical assistance. The Committee takes note of this information.

261. "As regards the allegation concerning the conclusion of a collective agreement with a trade union financed by the employer, the Committee requests the Government to undertake an investigation in this respect and to keep it informed of the result, in particular as regards the representative character or otherwise of the Roo Sing Garment Co. Democratic Workers' Union." In this regard the Government reports that the Roo Sing Garment Co. Democratic Workers' Union is representative, and legally enjoys trade union rights in accordance with the law. There is no trade union organization financed by the employer. The Committee takes note of this information.

262. "As regards the proceedings for slander and libel initiated against trade union officials and members, the Committee requests the Government to send information on the criminal proceedings initiated against the members of the trade union's executive board and other workers and hopes that, since the administrative authority has confirmed that there had indeed been acts of sexual harassment, the dismissals will be cancelled and the criminal proceedings against the trade unionists declared inadmissible." In this regard the Government indicates that in matters regarding the criminal proceedings for slander and libel against Eddy Reyes and against César Pérez Rodríguez and others, the Ministry of Labour is not a party in that case, and so is not linked to it, and has no jurisdiction in strictly criminal matters. There is no information from the complainant trade union organization about the outcome of this case. The Committee requests the Government to keep it informed of the progress of the criminal proceedings.

263. "As regards the alleged drawing up of blacklists, the Committee requests the Government to conduct a thorough and independent investigation into the matter and to keep it informed in this respect." The Government reports that prior to the installation of an enterprise or enterprises covered by the export processing zones scheme, they are informed of the rights and obligations under national labour law. Ministerial resolutions are binding on both employers (Nicaraguan or foreign) and workers (Nicaraguan or foreign) who settle in Nicaragua. No evidence has been found of the existence of "blacklists" that are detrimental to the rights of workers as laid down in the law or that target members of trade unions in enterprises covered by the export processing zones scheme. The Nicaraguan administrative and judicial authorities do not, under any circumstances, allow this sort of practice, which seriously infringes the rights of workers. The Committee takes note of this information.

Case No. 2006 (Pakistan)

264. The Committee last examined this case at its June 2005 meeting when it urged, once again, the Government to ensure that the ban on trade union activities at Karachi Electric Supply Corporation (KESC) is lifted immediately and the rights of the KESC Democratic Mazdoor Union, as collective bargaining agent, are restored as soon as possible. It further requested 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 (337th Report, paras. 102-104).

265. In its communication of 24 June 2005, the Government indicated that, during the process of privatization, the KESC management was taking all possible measures to improve the working environment, and that lifting a ban on the CBA would give a wrong signal and would be likely to have an adverse effect on the interests of local as well as foreign investors. Therefore, a close liaison was being ensured between the employees of the KESC, the Ministry of Finance, the Privatization Commission and the Ministry of Labour, Manpower and Overseas Pakistanis, to address labour issues. The Government further informed that, during a meeting of privatization of the KESC, the following package had been agreed with the new owner in respect of the KESC employees: 20 per cent salary increase, maintenance of all existing benefits and facilities enjoyed by the employees, employment security for a period of one year, training programmes for KESC employees, grant of 10 per cent shares to KESC employees. However, the same package included an understanding that trade union activities would commence on expiry of the six-month period after the take over of the company by a new investor.

266. The Committee notes the information provided by the Government. It recalls that, already in its January communication, the Government had indicated that the trade union rights at the KESC would remain suspended for six months after privatization of the corporation. The Committee regrets that the Government, invoking economic interests, continues to violate the trade union rights of KESC workers. It recalls in this respect that the solution to the social and economic problems of any country cannot possibly lie in the suspension of trade union rights (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 31). The Committee therefore reiterates its previous request to lift immediately the ban on trade union activities at KESC and to restore without delay the rights of the KESC Democratic Mazdoor Union and to keep it informed in this respect.

Case No. 2096 (Pakistan)

267. The Committee examined this case at its March 2004 meeting (see 333rd Report, paras. 833-848) and on that occasion it formulated the following recommendations:

(a) The Committee deplores that, despite the time that has elapsed since this case was first examined, the Government has not replied to all of the Committee's recommendations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urgently requests the Government to be more cooperative in the future.

(b) The Committee urges the Government to amend section 27-B of the Banking Companies (Amendment) Act, 1997, without delay and requests it to provide information on any progress made in this regard.

(c) The Committee once again strongly urges the Government to provide information without delay on 500 trade union leaders in the banking sector, including Mr. Maqsood Ahmed Farooqui, President of the UBL Employees' Federation of Pakistan, and Mr. Rahmat Ullah Kazmi, General Secretary, UBL Labour Union Karachi, who were dismissed or terminated from employment pursuant to the enactment of section 27-B of the Banking Companies Act.

(d) The Committee refers to its recommendations in Case No. 2229 concerning Pakistan approved by the Governing Body at its March 2003 meeting where it requested the Government to amend the Industrial Relations Ordinance of Pakistan (IRO) of 2002, as well as to the observations of the Committee of Experts. The Committee regrets that so far the Government has not been able to amend the IRO so as to bring it into conformity with Conventions Nos. 87 and 98.

268. In communications of 1 and 26 June 2004, the United Bank Limited Employees' Union (UBL employees' union), affiliated to the complainant organization, stated that no progress was made in respect of implementation of the Committee's recommendations in this case. It furthermore submitted several letters (notices) sent by the management of the UBL in reply to the request of the UBL employees' unions in Sialkot (Gujranwala) and in Lohore Region to start collective bargaining in which the UBL indicated that the unions active at the UBL were illegal bodies and that therefore the bank could not enter into any bilateral negotiation with them. The following reasons were invoked by the bank:

(i) The notice inviting the UBL management to start bilateral negotiation was signed by Mr. Raja Mohammed Sarfaraz, who was not a bank employee and therefore could not be a UBL trade union office bearer.

(ii) Under the IRO 2002, the UBL constitutes one establishment. The law did not permit the establishment of unions in subdivisions of an establishment. Therefore, the union, its statutes and its collective bargaining agent (CBA) certification were without any legal effect. Moreover, the Registrar should cancel registration of unions registered under the IRO 1969, as their registration violated the IRO 2002.

(iii) The rights conferred under the IRO 2002 were subject to the Constitution of Pakistan, as well as "any other law" (section 3), i.e. section 27-B of the Banking Companies Ordinance, 1962.

(iv) The UBL employees' union, violated section 3(1)(d) of the IRO 2002 which provided for a compulsory affiliation of every CBA with a federation at national level within two months of determination of the CBA or promulgation of the IRO 2002 whichever is earlier.

(v) The union used the address of the branch office of the bank. In other words, the union was carrying out its activities at the bank premises, which violated section 27-B of the Banking Companies Ordinance, 1962.

269. The complainant also submitted a letter from the Office of the Registrar of Trade Unions in Sargodha, addressed to the Senior Vice-President of the ULB in Karachi, answering the abovementioned objections raised by the UBL management in the following way:

(i) Although Mr. Raja Mohammed Sarfaraz was not an employee of the UBL, he was retired from service. By virtue of section 6(1)(d) of the IRO 2002, he had the right to hold trade union office.

(ii) The objection that the UBL constituted one establishment was legally incorrect. Moreover, the existing status of the union as a CBA was in conformity with section 80 of the IRO 2002.

(iii) The statutes of the union were not inconsistent with the IRO 2002; therefore, the registration of the union could not be cancelled.

(iv) The federal Government had not exempted banks from the scope of the IRO 2002.

(v) The status of the union as CBA within the meaning of section 20(1) of the IRO 2002, was lawful and beyond any doubt, the UBL management was legally bound to negotiate with the union.

270. In its communication of 24 June 2005, the Government provided a detailed reply to the Committee's recommendations. With regard to the previous request to amend section 27-B of the Banking Companies (Amendment) Act, 1997, so as to admit as candidates for union office persons who have previously been employed in the occupation concerned and, by exempting from the occupational requirement a reasonable proportion of the officers of an organization, the Government indicated that the procedure of establishment and registration of trade unions, as well as other matters related to industrial relations, were regulated by the IRO 2002. By virtue of section 6(1)(d), 25 per cent of the trade union officers could be elected from among the persons who were not employees of the banking company in question. The provisions of the IRO took precedence over the provisions of the Banking Companies Ordinance. The Government further indicated that a case on this issue was pending before the high court (Petition C.P. No. 331/2003).

271. The Government contested the allegation of mass dismissals in the banking sector. It stated that, according to the ULB, none of the ex-employees have been dismissed on the grounds of their trade union activities. Mr. Maqsood Ahmed Farooqi, the President of the UBL Employees' Federation of Pakistan, was dismissed on the basis of a proven act of misconduct on 28 July 1999 and not pursuant to section 27-B of the Ordinance. His appeal to the Federal Services Tribunal was dismissed. His appeal before the Supreme Court was still pending. As concerns the case of Mr. Rahmat Ullah Kazmi, General Secretary, UBL Labour Union Karachi, the Government also contested the allegation that he was dismissed pursuant to section 27-B, as amended in 1997. According to the Government, he was dismissed on 5 September 1996 and therefore could not be dismissed pursuant to section 27-B. Following a rejection of his appeal by the Federal Services Tribunal, Mr. Rahmat Ullah Kazmi filed a second appeal before the same tribunal. The bank, being aggrieved by the second appeal, filled an appeal before the Supreme Court of Pakistan, which was still pending.

272. With regard to the amendment of the IRO 2002, the Government stated that it had held full and frank consultations with the stakeholders. The amending law would soon be placed before Parliament for approval.

273. The Committee notes with interest the detailed reply provided by the Government. While noting the Government's statement that the IRO 2002 takes precedence over the Banking Companies (Amendment) Act, 1997, and that, therefore, 25 per cent of the trade union office bearers could be elected among persons who were not employees of the banking company in question, the Committee also notes that, on the one hand, this assertion is presently contested before the high court and, on the other hand, the management of the UBL in Sargodha refused to negotiate with the union and one of the reasons it had invoked was that the President of the union was not an employee of the bank. The Committee considers that where difficulties with regard to the interpretation of rules concerning the election of trade union officers create situations where the employers refuse to negotiate with the union concerned and, more in general, to recognize such a union, problems of compatibility with Convention No. 87 arise. The Committee therefore requests the Government to take all necessary measures so as to ensure, in practice, that trade unions can carry out their activities in the banking sector, including the right to elect their representatives in full freedom and the right to collective bargaining. More specifically, it requests the Government to take all necessary measures so as to ensure that the UBL employees' unions can negotiate the terms and conditions of employment of its members with the managers of the UBL branches concerned and keep it informed in this respect.

274. As concerns the alleged cases of dismissal, the Committee notes that the Government submitted that Mr. Maqsood Ahmed Farooqi, the President of the UBL Employees' Federation of Pakistan, was dismissed on the basis of a proven act of misconduct on 28 July 1999 and not pursuant to section 27-B of the Ordinance. The same is submitted in respect of the dismissal in 1996 of Mr. Rahmat Ullah Kazmi. The Committee notes that the dismissal of Mr. Maqsood Ahmed Farooqi as well as of some other trade union members took place in the context of a strike in March 1998 where the strikers demanded, inter alia, an end of a ban on the UBL trade unions. The Committee further notes that, although the Government indicated that Mr. Rahmat Ullah Kazmi was not dismissed pursuant to section 27-B, it did not provide for any further information on the circumstances of his dismissal, nor on the numerous other alleged anti-union dismissals. The Committee therefore requests the Government to conduct an independent inquiry to thoroughly and promptly consider the allegations of anti-union dismissals at the UBL and to ensure that appropriate measures are taken in response to any conclusions reached in relation to these allegations of anti-union discrimination. The Committee requests the Government to ensure that, if it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, those workers are reinstated in their jobs without loss of pay. If the independent inquiry finds that reinstatement is not possible, the Committee requests the Government to ensure that adequate compensation, so as to constitute sufficiently dissuasive sanctions, is paid to the workers. The Committee requests the Government to keep it informed of any developments in this regard.

Case No. 2229 (Pakistan)

275. The Committee last examined this case at its March 2003 meeting (see 333rd Report, paras. 102-109). On that occasion, it recalled that workers of the Employees' Old-Age Benefits Institution (EOBI) should enjoy the right to establish and join organizations of their own choosing and requested the Government to amend the Industrial Relations Ordinance of Pakistan (IRO) of 2002, accordingly. It further requested the Government to conduct an independent investigation into the alleged acts of anti-union discrimination against trade union officers of the EOBI Employees' Federation of Pakistan. The Committee regretted that the Government had not been able to amend the IRO and, in particular, its sections 1(4), 3(1)(d), 18, 19(1), 20(11), 49(4)(e) and 65(5) and requested the Government to engage in full consultations with the social partners in order to amend the IRO so as to bring it into conformity with Conventions Nos. 87 and 98 and to resolve the issue concerning the labour judiciary system. It further regretted that no information was provided by the Government in respect of the waiting period relative to the strike.

276. In its communication of 24 June 2005, the Government reiterated that the amendments to the IRO 2002 were prepared following full and frank consultations with the stakeholders and forwarded its observations on the previous recommendations of the Committee.

277. With regard to the Committee's recommendation to ensure that workers of Bata Shoes company; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd.; Pakistan Mint; establishments or institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons; institutions established for payment of employees' old-age pensions or workers' welfare; members of Watch and Ward; security and fire services staff of an oil refinery; or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; railways; and administration of the State, enjoy the right to establish and join organizations of their own choosing, the Government submitted that the IRO 2002 was applicable to the Bata Shoes company and that it was planning to make certain amendments to section 1(4) of the IRO, keeping in view the international commitments and security concerns of the country in the present state of war against terrorism.

278. As concerns the Committee's request to amend the IRO so as to ensure that workers' organizations are allowed to determine themselves whether they wish to join a federation (section 3(1)(d)) and, if that is the case, to enjoy the right to establish and join the federation of their own choosing, the Government indicated that it was in the process of amending its legislation.

279. As concerns the Committee's request to repeal section 19(1) of the IRO, which imposed measures of administrative control over trade union assets, the Government stated that the audit was necessary for financial discipline. It indicated that section 19(1), which related to the audit of accounts of trade unions, did not impose any administrative control over trade unions. The Government considered that it was rather a question of a simple verification that the receipt from the poor workers was properly and fairly utilized for the purpose of their welfare and in accordance with the charter of the union. This section did not discriminate any particular union. However, the Government had proposed to amend the law so as to give the right of choice of an auditor to trade unions. It further indicated that only the accounts of a collective bargaining agents having membership of 10,000 or more (as opposed to 5,000 previously) would be subject to an external audit.

280. As to the request of the Committee to lower the minimum requirement of ten trade unions, with at least one from each province, for establishment of a national federation (section 18), the Government stated that this number was being lowered to four, one from each province.

281. In respect of the Committee's request to repeal section 65(5) of the IRO, which stipulated the disqualification of a trade union officer from holding any trade union office for the following term for committing an unfair labour practice and covered a wide range of conduct not necessarily making it inappropriate to hold a position of trust, the Government explained that not all types of unfair labour practice enumerated in section 64 debarred the office bearer from re-election. Section 65(4) referred only to clause (d) of section 64, which defined unfair labour practice as an act of compelling or attempting to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, assault, physical injury, disconnection of telephone, water or power facilities or by such other methods.

282. With regard to the Committee's request to amend the IRO so as to enable the review of the factual bases on which the power to represent workers in collective bargaining was granted to unions if there is a change in the relative strength of unions competing for that right, the Government stated that it was considering to lower from one-fourth to one-fifth the number required for registration of a trade union at the enterprise where two or more registered unions already exist.

283. As to the request to amend the IRO so as to allow workers to seek legal remedies against the acts of anti-union discrimination at any time, and not only during an industrial dispute (section 49(4)(e)), the Government indicated that it had been proposed to restore the competence of the National Industrial Relations Commission to grant interim relief to the aggrieved party.

284. As concerns the Committee's request to provide information on whether there is an additional waiting period relative to strike notice before initiating a strike action and, if so, to indicate the duration, the Government indicated that there was a provision for seven days notice before initiating a strike.

285. Finally, as to the Committee's request to engage in full consultations with the social partners on the possible amendment of the IRO in order to resolve the issue concerning the labour judiciary system, the Government indicated that, on the demand of the stakeholders of the last Pakistan Tripartite Labour Conferences, the Labour Appellate Tribunal was abolished by the IRO 2002. However, following recent demands of workers, the Government was considering to revive the said forum.

286. The Committee takes notes of this information and, in particular, of the intent of the Government to amend several provisions of the IRO and to resolve the issue concerning the labour judiciary system, as requested by the Committee. It further notes the Government's intention to amend section 1(4) of the IRO and trusts that the measures taken will enable the EOBI workers rapidly to enjoy the right to establish and join organizations of their own choosing. It requests the Government to keep it informed of the progress made in this regard. The Committee refers the legislative aspects of this case, in particular as regards the numerous proposed amendments to the IRO, to the Committee of Experts on the Application of Conventions and Recommendations.

287. The Committee regrets that no information was provided by the Government on the alleged acts of anti-union discrimination against trade union officers of the EOBI Employees' Federation of Pakistan or on the measures taken to conduct an independent investigation in this respect. The Committee therefore reiterates its previous recommendation and requests the Government to keep it informed of developments in this respect.

Case No. 2242 (Pakistan)

288. The Committee examined this case at its November 2003 meeting (see 332nd Report, paras. 808-828) and on that occasion it formulated the following recommendations:

(a) The Committee considers that Chief Executive Order No. 6 suspending trade unions and existing collective agreements at the Pakistan International Airline Corporation violates Articles 2 and 3 of Convention No. 87 and Article 4 of Convention No. 98. It therefore urges the Government to repeal Chief Executive Order No. 6 of 2001 and to take the necessary measures in order to repeal Administrative Orders Nos. 14, 17, 18 and 25 so as to restore full trade union rights to the workers concerned.

(b) The Committee requests the Government to take the necessary measures so as to ensure that trade union office bearers enjoy such facilities as may be necessary for the proper exercise of their functions.

(c) The Committee requests the Government to keep it informed of the measures taken to restore full trade union rights to PIAC workers.

289. In its communication of 18 March 2005, the complainant, the International Transport Workers' Federation (ITF), submitted that there had been no changes concerning freedom of association rights of workers of the Pakistan International Airlines Corporation (PIAC). It requested the Committee to seriously review the situation in Pakistan concerning this case.

290. In its communication of 24 June 2005, the Government repeated its previous statement to the effect that that the Pakistan International Airline Pilot's Association (PALPA), the People's Unity of PIA Employees and Air League of PIA Employees challenged the executive order and subsequent administrative orders before the High Court of Sindh in Karachi. The High Court, through its judgement of 29 March 2002, dismissed the petitions of the two latter unions. The two unions have lodged appeals before the Supreme Court of Pakistan which are still pending. The suit filed by the PALPA is still pending before the High Court of Sindh in Karachi.

291. The Committee deeply regrets that no measures have been taken by the Government to give effect to the recommendations of the Committee to ensure trade union rights at the PIAC. It recalls that all governments are obliged to respect fully the commitments undertaken by ratification of ILO Conventions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 11) and recalls once again that Articles 2 and 3 of Convention No. 87 provide that workers without distinction whatsoever, shall have the right to join organizations of their own choosing and that these organizations shall be able to exercise their activities in full freedom. It therefore reiterates its previous recommendation to repeal Chief Executive Order No. 6 of 2001 and Administrative Orders Nos. 14, 17, 18 and 25 and requests the Government to take all necessary measures without delay to restore full trade union rights to PIAC workers and to keep it informed in this respect.

Case No. 2273 (Pakistan)

292. The Committee examined this case, in which the complainant alleged that the management of the Army Welfare Sugar Mill ordered the dissolution of the Army Welfare Sugar Mills Workers' Union (AWSMWU), at its November 2004 meeting (see 335th Report, paras. 1150-1163). On that occasion, the Committee noted with interest that the Labour Court concluded that the services of the Army Welfare Sugar Mill were not exclusively connected to the armed forces and that its employees should enjoy the fundamental right to form a trade union. The Court dismissed the case brought by the Registrar following the application of the Army Welfare Sugar Mill requesting to cancel registration of the AWSMWU. The Committee requested the Government to ensure the implementation of the judicial decision.

293. In its communication of 24 June 2005, the Government indicated that the matter regarding registration of the AWSMWU was before the Registrar of Trade Unions at Hyderabad and that no order had yet been passed. Furthermore, the Government stated that the charter of demands submitted by the union was under conciliation with a conciliator. Both parties, i.e. the management and the union, were actively participating in the conciliation proceedings. Due to the intervention of the Provincial Labour Department, the relations between parties were healthy; both parties were pursuing the case before the legal forums.

294. The Committee notes the information provided by the Government. It regrets that, despite the court ruling dated 7 August 2004, the question of registration of the union is still pending before the Registrar. The Committee considers that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization. In view of the length of time that has elapsed since the court ruling, and of the fact that there are no apparent obstacles justifying the delay, the Committee requests the Government to take the necessary measures to ensure the registration of the AWSMWU without delay and keep it informed in this respect.

Case No. 2285 (Peru)

295. The Committee last examined this case at its November 2004 meeting, when it made the following recommendation regarding the allegations that remained pending (see 335th Report, paras. 1173 to 1185):

Recalling that the authorities should not discriminate against a trade union organization as concerns the imposition of taxes, the Committee requests the Government to confirm whether or not trade union organizations generally benefit from tax exemption and, if so, to take measures to ensure that the complainant organization is not discriminated against and so that the back taxes being demanded by the Municipality of Metropolitan Lima from the Federation of Peruvian Light and Power Workers (FTLFP) are not levied. The Committee requests the Government to keep it informed in this respect.

296. In a communication dated 27 June 2005, the FTLFP reiterated the allegations made in its initial complaint.

297. In a communication dated 19 April 2005, the Government indicated that the complaint concerned, in essence, the property tax and municipal tax levied by the Municipality of Metropolitan Lima (MML). Regarding the property tax, it says that national law provides that land owned by trade union organizations, duly recognized by the Ministry of Labour and Employment Promotion, is exempt as long as it is used for the specific purposes of the union. It should be noted, however, that the exemption from this tax for land belonging to trade unions was introduced recently by Act No. 27616 (which came into force on 1 January 2002), as it was not included in the original text of the Municipal Tax Law (Legislative Decree No. 776, which came into force on 1 January 1994). Therefore the claim made by the FTLFP regarding the alleged unjust imposition of the aforementioned tax by the MML in 1997, 1998, 1999, 2000 and 2001, is without foundation, as in that period there was no provision for trade union exemption. On the other hand, there may be grounds for the claim corresponding to the period from 2002 to the present day. In this regard, the complainant could appeal to the MML for a declaration of exemption from the tax in question for that period, as long as it can show that it meets the relevant requirements; if its request is not granted, it could go through the appropriate channels of appeal according to the current provisions in force. Regarding the municipal tax, the Government states that there is a paragraph in Standard IV of the introductory title of the Consolidated Text of the Tax Code, approved by Presidential Decree No. 135 99-EF, according to which local governments can use by-laws to create, modify or abolish contributions, municipal taxes, laws and licences or give exemption from them, within their jurisdiction and subject to the requirements of the law. According to the MML, between 1997 and 2004 there has been no by-law under the aforementioned standard exonerating trade union organizations from these taxes. This being the case, there are no grounds for the complaint against the collection of municipal taxes, as there is no specific provision supporting it.

298. In a communication dated 24 August 2005, the Government confirmed that federations are exempt from property tax in accordance with the Municipal Tax Law. They must pay municipal tax as long as the by-laws regulating such a tax, for fiscal years 1997 to 2004, do not provide for any relief for the complainant and provided that the requirement to pay taxes cannot be identified as being an anti-union practice.

299. The Committee takes note of this information.

Case No. 2289 (Peru)

300. At its June 2005 meeting, the Committee requested 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 (see 337th Report, para. 124).

301. In communications dated 14 January and 22 April 2005, the Peruvian Union of Folklore Artists (SITAFP) and the General Confederation of Workers of Peru (CGTP) stated that the Ministry of Labour had again refused to register the executive committee rightfully elected by the members of the SITAFP, in spite of the omissions that were questioned at the first attempt to register the executive committee having been corrected.

302. In communications dated 18 February and 21 June 2005, the Government stated that the Luz del Sur S.A.A. company appealed the decision of 25 October 2004 ordering the reinstatement of trade union official Mr. Luís Martín del Río Reátegui and that there was still no decision on the appeal proceedings. The Government also stated that the registration of the executive committee of SITAFP was accepted on 26 May 2005 under the corresponding executive decision, once certain aspects of that infringed legislation and trade union statutes were corrected.

303. The Committee notes with interest the registration of the executive committee of SITAFP. The Committee looks forward to hearing the decision handed down by the legal authority on the appeal by the Luz del Sur S.A.A. company against the decision of 25 October 2004 ordering the reinstatement of trade union official Mr. Luís Martín del Río Reátegui to his duties.

Case No. 2252 (Philippines)

304. The Committee last examined this case at its November 2004 Session (see 335th Report, paras. 162-167). On that occasion, it urgently requested the Government to take the necessary steps to: (1) amend the national legislation so as to allow a fair, independent and speedy certification process and to provide protection against acts of employer interference; (2) amend article 263(g) of the Labor Code concerning the exercise of the right to strike; (3) take measures so that the complainant Toyota Motor Philippines Corporation Workers' Association (TMPCWA) and the Toyota Motor Philippines Corporation negotiate in good faith; (4) initiate discussions to consider the reinstatement of the 227 workers dismissed by the corporation and union officers deemed to have lost their employment status, or, if reinstatement is not possible, the payment of adequate compensation; (5) keep it informed of any measures taken to withdraw criminal charges laid against union officers; and (6) finally, noting that, in its decisions of 24 September 2003 and 28 January 2004, the Supreme Court nullified the preliminary injunction that the corporation had obtained to prevent the union from demanding collective bargaining, the Committee requested the Government to provide clarification as to whether, in the absence of an injunction preventing the TMPCWA from relying upon its earlier certification as exclusive bargaining agent, the certification was valid despite the pending legal challenge, until any appropriate court order to the contrary.

305. In a communication dated 30 August 2005, the complainant TMPCWA indicated that: (1) the Toyota Motor Philippines Corporation still refused to negotiate despite the complainant's recognition as the exclusive bargaining agent since 19 October 2000 and the abovementioned rulings by the Supreme Court favouring the commencement of negotiations, as well as the Committee's recommendations calling for negotiations in good faith to reach a collective agreement; (2) pursuant to a notice of strike filed before the National Conciliation and Mediation Board on 4 March 2005 by the TMPCWA on the ground of the corporation's refusal to bargain, several conciliation meetings took place between 10 March and 27 July 2005, to which the corporation failed to appear, continuing to ignore the decision of the Supreme Court which favoured the starting of negotiations with the complainant; (3) instead of taking steps to ensure that the recognition of the TMPCWA became effective and that negotiations took place, the Department of Labor, in complicity with the corporation, issued an order dated 30 June 2005, to conduct a new certification ballot at the request of another union, the Toyota Motor Philippines Corporation Labor Organization (TMPCLO), which had been recently created under the dominance of the corporation; (4) the complainant lodged an appeal against the decision of the Department of Labor on 19 July 2005, but it was dismissed by the National Labor Relations Commission (NLRC) on 9 August 2005 on the ground that the complainant was seeking to delay the certification ballot; this decision did not take into account the fact that the corporation had been vigorously opposing the certification of the complainant and had refused any negotiation with it since February 1999; the complainant filed a request for reconsideration on 19 August 2005; (5) 227 TMPCWA members and officers, including its President Ed Cubelo, remained dismissed and were not included in the list of voters submitted to the Department of Labor with a view to conducting the certification ballot; (6) after having fabricated criminal charges against 18 members and leaders of the TMPCWA the corporation insisted during the criminal proceedings that those workers who had not yet paid their bail should be arrested, thus imposing a heavy financial burden on the complainant which had to shoulder every year the renewal of the bail; (7) certain TMPCWA members and their families continued to suffer harassment, including by the police; (8) on 17 July 2005 the Philippine House of Congress invited the TMPCWA to appear in the deliberations as one of the Resource persons in the ongoing hearing concerning the amendment of article 263(g) of the Labor Code. The complainant attaches numerous documents to its communication.

306. The Committee deeply regrets the fact that the Government has so far failed to communicate any follow-up information on the measures taken to give effect to the Committee's recommendations. The Committee recalls that when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 10). Moreover, noting that the Philippines have ratified Conventions Nos. 87 and 98, the Committee recalls that all governments are obliged to respect fully the commitments undertaken by ratification of ILO Conventions (see Digest, op. cit., para. 11). The Committee requests the Government to provide information without further delay on the steps taken with regard to the Committee's recommendations.

307. With respect to the complainant's allegations concerning the issuing of an order by the Department of Labor authorizing a new certification ballot at the request of a trade union established under the dominance of the corporation, and the absence of any measures on behalf of the Department of Labor to remedy the employer's persistent refusal to recognize and negotiate with the complainant, the Committee observes from the text of the Order that:

(While it) may be admitted that there is a pending issue before the Court of Appeals between intervenor (the TMPCWA) and management with regard to the decision of the Secretary of Labor dated 19 October 2000, certifying herein intervenor as the sole and exclusive bargaining agent of the employees" ... "(in) granting the petition, it does not necessarily mean that this Office is defiant of the order of the Secretary of Labor or the Court of Appeals. On the contrary, granting the instant petition and ordering the conduct of certification election would be more in harmony with the Secretary's recognition of the desire of the majority of the employees to conduct a certification election, and their need to be represented by a labor union in the negotiating table. It must be emphasized that the Secretary of Labor certified intervenor as the bargaining agent of the employees due to the fact that it was the sentiment of the majority of the employees at that time. ... In the instant case, more than majority of the employees have already expressed their desire to conduct another certification election. ... Under these present circumstances, it would appear that there was a shift in allegiance on the part of the employees. ... We opine that the most democratic method and the best forum to ascertain the true will of the employees is in a certification election where the employees would be given the chance to choose their collective bargaining agent through secret ballot. After all, ordering the conduct of the certification election would be more in consonance with the State's policy to promote and emphasize the primacy of free collective bargaining and free trade unionism considering that the employees have long been deprived of their bargaining representation, as well as the benefits of a collective bargaining agreement. Such order to conduct the certification election would also not be considered an open defiance of any order of the Court of Appeals. Unless and until restrained by the Court, this Office will not shirk from its obligation of accepting, hearing and resolving petitions for certification election."

308. The Committee deplores the fact that in granting this order, the Department of Labor did not give consideration to the employer's consistent refusal to recognize the TMPCWA and the influence that such a stance might have had on the workers' choice of the organization representing them. The Committee recalls from the previous examination of this case that it took more than one year to organize the election for the certification of the TMPCWA and another year to have the complainant confirmed as the exclusive bargaining agent within Toyota Motor Philippines Corporation, due to the various petitions, appeals and motions filed by the corporation with the labour authorities and, in particular, with the Secretary of the Department of Labor who has the final say on the matter (see 332nd Report, para. 878). Moreover, ever since its certification, the TMPCWA has been unable to engage in collective bargaining with the corporation due to further legal action taken by the corporation before the courts. The Government has indicated in a previous communication that as long as these cases are pending, the legitimacy of the certification of the TMPCWA by the Secretary of Labor and Employment remained unresolved and the Department of Labor could not be accused of inaction (see 335th Report, para. 164). The Committee observes that while the legal challenges pending before the Courts are considered as preventing the TMPCWA from exercising its functions as representative union, they have not been considered as preventing the Department of Labor from authorizing a new certification ballot in the abovementioned order.

309. The Committee trusts that the proceedings which have been pending for quite some time before the courts with regard to the certification of the TMPCWA will be concluded soon and requests the Government to keep it informed of the final decision as soon as it is handed down. The Committee also requests the Government to institute an independent inquiry into the allegations of employer interference, in particular, the creation of a new union under the dominance of the corporation, and if such allegations are found to be true, to take the necessary remedial action. The Committee trusts that before moving forward with a new ballot for certification, the Government will await the outcome of the Court proceedings concerning TMPCWA's certification as well as the outcome of the independent judicial inquiry into the allegations of employer interference. The Committee further reiterates its previous request to the Government to amend the national legislation so as to allow a fair, independent and speedy certification process providing adequate protection against acts of employer interference.

310. Observing that the employer's refusal to recognize and negotiate with the TMPCWA dates as far back as 1999, and that the Government has not communicated any information on efforts to ensure that negotiations in good faith take place despite the corporation's persistent refusal to recognize and negotiate with the TMPCWA, the Committee once again recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided and once again urges the Government to provide information on efforts made to promote negotiations in good faith between the TMPCWA and the Toyota Motor Philippines Corporation.

311. With regard to the 227 dismissed members and officers including the President of the TMPCWA Ed Cubelo, the Committee once again urges the Government to indicate the measures taken to initiate discussions to consider the reinstatement of the 227 workers dismissed or, if reinstatement is not possible, the payment of adequate compensation.

312. With regard to the penal proceedings concerning 18 trade union members and officers, the Committee once again urges the Government to inform it of developments in the proceedings and of any measures taken to withdraw the criminal charges. The Committee also requests the Government to provide its observations on allegations of harassment, including by the police.

313. With regard to the amendment of article 263(g) of the Labor Code, the Committee notes with interest that the complainant was invited to appear before the House of Congress as one of the Resource persons in the ongoing hearing concerning the amendment of this article. The Committee requests the Government to provide information on developments in this respect.

Case No. 2383 (United Kingdom)

314. The Committee examined this case at its March 2005 meeting (see 336th Report, approved by the Governing Body at its 292nd Session, paras. 722-777) and reached the following recommendations on which it requested to be informed of developments:

(a) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited, the Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike.

(b) The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers' pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that:

(i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and

(ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned.

315. In a communication dated 19 August 2005, the Government welcomed the Committee's recognition that the prison service is an essential service where the right to strike can be restricted or even prohibited. So far as compensatory guarantees for employees of private sector companies providing prison services were concerned, the Government was in consultation with private contractors on this issue and would keep the Committee informed of developments.

316. The Government added that it had instructed the Director-General of HM Prison Service together with officials at HM Treasury and the Office of Manpower Economics to consult with the Prison Officers' Association with a view to improving the current mechanism for the determination of prison officers' pay in England, Wales and Northern Ireland on the understanding that: (i) while the recommendations of the Pay Review Body could not be binding, they would only be departed from in exceptional circumstances, one of which would be on the grounds of affordability (this reflected current practice). Recommended awards were very rarely abated and the existing administration had never taken such action. (ii) The independence of the Pay Review Body was achieved by: (a) all appointments of members being subject to scrutiny by the Commissioner for Public Appointments, an official accountable directly to Parliament; (b) the Director of the Office of Manpower Economics being a member of the selection panel, whose approval of the selection criteria brought further independent scrutiny to the process; (c) all vacancies being publicly advertised and therefore open to a cross-section of applicants from all aspects of society; and (d) selection being by way of a panel whose recommendations for appointment must be approved by the Home Secretary, the Chief Secretary of the Treasury and the Prime Minister. The Government would seek to enhance this selection process by proposing that: (i) the criteria for appointment to the Pay Review Body include the range of experience, skills and competencies required of candidates; and (ii) prior to any vacancy being advertised, both the criteria and the advertisement for the vacancy be subject to consultation with the trade unions representing workers within the scope of the Pay Review Body.

317. With regard to the establishment of appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out, so as to compensate them for the limitation of their right to strike, the Committee notes that the Government is in consultation with private contractors on this issue. The Committee requests to be kept informed of developments in this respect.

318. With regard to the issue of engaging in consultations with a view to improving the current mechanism for the determination of prison officers' pay in England, Wales and Northern Ireland, the Committee notes that the Government has instructed the Director-General of HM Prison Service together with officials at HM Treasury and the Office of Manpower Economics to consult with the Prison Officers' Association with a view to improving the current mechanism in particular, by proposing that: (i) the criteria for appointment to the Pay Review Body include the range of experience, skills and competencies required of candidates; and (ii) prior to any vacancy being advertised, both the criteria and the advertisement for the vacancy be subject to consultation with the trade unions representing workers within the scope of the Pay Review Body. The Committee requests to be kept informed of the progress of the consultations.

Case No. 2200 (Turkey)

319. The Committee last examined this case at its meeting in June 2004 and made the following recommendations which remain pending (see 334th Report, para. 762):

(a) Bearing in mind that a process to amend Act No. 4688 is under way and that it is part of a more general reform process, the Committee requests the Government to provide the relevant texts amending Act No. 4688 in compliance with its obligations to the ILO supervisory mechanisms.

(b) With respect to the allegations of favouritism within Türk TELEKOM and the Office of Agricultural Products, the Committee urges the Government: (i) to examine without delay the allegations on the establishment of an institution administrative committee in Türk TELEKOM with the participation of Türk Haber-Sen and the distribution by the Office of Agricultural Products of membership forms in favour of Türk Tarim-Orman Sen union, including any concomitant acts of anti-union discrimination that might have occurred; (ii) to take the necessary steps in order to ensure that all unions are treated on an equal footing and that the workers concerned may freely choose the union they wish to join; and (iii) to keep it informed of any developments in this respect.

(c) With respect to the 107 workers involved in SES' activities, the 30 members and officers of EGITIM-SEN and the 13 members and officers of unions affiliated to KESK, the Committee: (i) urges the Government to institute, without further delay, independent inquiries, in order to establish whether the workers concerned have been adversely affected in their employment by reason of their legitimate trade union activities; (ii) urges the Government, if it is established that these workers have been subject to anti-union discrimination, to take all the necessary measures to remedy without delay any effects of anti-union discrimination and, in particular, to declare null and void transfers decided for anti-union reasons and take immediate measures so that the workers concerned be returned to the positions they held before being transferred; and (iii) requests the Government to keep it informed of developments in this respect.

320. In a communication dated 25 July 2005, the Government indicated with regard to the allegations of favouritism during the establishment of the administrative committee in Türk TELEKOM under the Public Employees' Trade Unions Act No. 4688, that section 22 of the said Act required the establishment of an administrative committee within public organizations with the participation of the representatives of the public employer and an equal number of representatives of the most representative trade union in the relevant organization in order to give their opinions on the questions of working conditions of the public employees and the equal application of the law vis-à-vis public employees. In accordance with Act No. 4688 and the regulation issued in pursuance of section 41 of the said Act, this Committee has been meeting twice a year in April and October on the day, hour and place to be determined by representatives of the employer. At the end of the meetings, the views of the parties have been reported as meeting records and one copy has been given to both the representative of the trade union and the representative of the public employer. One copy has been displayed at the notice board of the public organization.

321. The Government added that within this framework the administrative committee meetings have been held every year in April and October following the first meeting in April 2002 with the participation of the representatives of Türk TELEKOM A.S. (Turkish Telecom Company) and the most representative trade union at Türk TELEKOM A.S. According to the Government, there has never been favouritism in this respect.

322. With regard to its request under (a) above for the Government to provide the texts amending Act No. 4688 in compliance with its obligations to the ILO supervisory mechanisms, the Committee takes note of the observations made in 2004 on Act No. 4688 by the Committee of Experts on the Application of Conventions and Recommendations (see 2004 observations on the application by Turkey of Conventions Nos. 87 and 98). The Committee also takes note of the information of legislative amendments on Act No. 4688, provided by the Government representative of Turkey to the Conference Committee on the Application of Standards during the 93rd Session of the International Labour Conference (June 1005) (see Provisional Record No. 22, Part two, 93rd Session, Geneva, 2005).

323. The Committee notes with regret that the Government does not provide specific information in reply to its recommendations under (b) and (c) above, for the Government to examine allegations of favouritism and adopt measures to treat all trade unions on an equal footing, and to conduct independent inquiries into numerous allegations of anti-union discrimination against KESK affiliates and their members, with a view to the adoption of remedial measures in cases where the allegations are found to be true.

324. The Committee recalls the allegations made by the complainant Confederation of Public Employees' Trade Union (KESK) according to which: (1) Türk TELEKOM and Türk Haber Sen had established an administrative committee on 29 April 2002, that is, before the end of the legal deadline of 31 May set in section 30 of Act No. 4688, thus preventing KESK from participating in the Committee; (2) the Office of Agricultural Products had distributed to workers membership forms in favour of the Türk Tarim-Orman Sen union, asking both employees joining the union and those not joining, to return the forms in question; (3) members and officers of KESK's constituent unions as well as workers participating in their activities were victims of anti-union discrimination mainly consisting in transfers against their will from one duty station or workplace to another and court actions against some of them. The three groups of public employees which had allegedly suffered anti-union discrimination were: (i) 107 officers and members of the Health Workers' Union (SES) affiliated to KESK, as well as workers who participated in the union's activities; (ii) 30 members and officers of EGITIM-SEN, the education union affiliated to KESK, the majority of whom were also subject to court actions by the administration; and (iii) 13 officers and members of affiliated unions who were subject to a number of penalties such as imprisonment, administrative sanctions and refusal of promotion (see 330th Report, paras. 1081-1083, 1100, and 334th Report, paras. 726 and 749-750).

325. The Committee regrets that, for the third time, the Government failed to reply to serious allegations of favouritism and anti-union discrimination and has ignored the specific recommendations made by the Committee in this respect. The Committee must recall, once again, that by according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers as to the organization they intend to join; in addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that public authorities should refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise. On more than one occasion, the Committee has examined cases in which allegations were made that public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations. Any discrimination of this kind jeopardizes the right of workers set out in Convention No. 87, Article 2, to establish and join organizations of their own choosing (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 304 and 306).

326. The Committee must also recall regarding acts of anti-union discrimination that:

- no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities (see Digest, op. cit., para. 690);

- protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular, transfers, downgrading and other acts that are prejudicial to the workers (see Digest, op. cit., para. 695);

- protection against acts of anti-union discrimination is particularly desirable in the case of trade union officials to enable them to perform their trade union duties in full independence (see Digest, op. cit., para. 724);

- the Government is responsible for preventing all acts of anti-union discrimination and ensuring that workers subject to such treatment have access to means of redress which are expeditious, inexpensive and fully impartial (see Digest, op. cit., paras. 738 and 741);

- where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention (see Digest, op. cit., para. 754).

327. In view of the complete lack of new information the Committee can only reiterate its previous conclusions, which read as follows:

(a) With respect to the allegations of favouritism within Türk TELEKOM and the Office of Agricultural Products, the Committee urges the Government: (i) to examine without delay the allegations on the establishment of an institution administrative committee in Türk TELEKOM with the participation of Türk Haber-Sen and the distribution by the Office of Agricultural Products of membership forms in favour of Türk Tarim-Orman Sen union, including any concomitant acts of anti-union discrimination that might have occurred; (ii) to take the necessary steps in order to ensure that all unions are treated on an equal footing and that the workers concerned may freely choose the union they wish to join; and (iii) to keep it informed of any developments in this respect.

(b) With respect to the 107 workers involved in SES' activities, the 30 members and officers of EGITIM-SEN and the 13 members and officers of unions affiliated to KESK, the Committee: (i) urges the Government to institute, without further delay, independent inquiries, in order to establish whether the workers concerned have been adversely affected in their employment by reason of their legitimate trade union activities; (ii) urges the Government, if it is established that these workers have been subject to anti-union discrimination, to take all the necessary measures to remedy without delay any effects of anti-union discrimination and, in particular, to declare null and void transfers decided for anti-union reasons and take immediate measures so that the workers concerned be returned to the positions they held before being transferred; and (iii) requests the Government to keep it informed of developments in this respect.

Case No. 2303 (Turkey)

328. The Committee examined this case at its meeting in November 2004 and made the following recommendations (see 335th Report, para. 1378):

(a) Recalling that it has already observed in a similar case concerning Turkey that the Government needed to amend its legislation in order to ensure a more effective protection of workers against all acts of anti-union discrimination, the Committee requests the Government to ensure that the competent labour authorities conduct an investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and, if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.

(b) Noting that 50 trade union members who were dismissed between 30 September and 10 October 2003 have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court, the Committee requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.

(c) The Committee requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act, No. 2822, so as to bring it in line with the principle according to which, 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. The Committee requests to be kept informed in this respect.

(d) The Committee deplores the fact that strikes have been suspended and compulsory arbitration imposed in numerous cases, and requests the Government to ensure in the future that such restrictions may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or an acute national crisis.

(e) The Committee requests the Government to amend section 33 of Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned. The Committee requests to be kept informed in this respect.

329. In a communication dated 25 July 2005, the Government recalled the facts of this case, pointing out that section 33(1) of the Collective Agreements, Strike and Lockout Act No. 2822 stipulated that if a lawful strike was considered to be prejudicial to public health or national security, the Council of Ministers could, by decree, suspend the strike for a period of 60 days. Section 34 of the Act stated that upon the entry into force of the decree, the Minister of Labour and Social Security with the assistance of a mediator, would choose from the list of official mediators and would make every effort to resolve the conflict. The provisions of the Act also recognized the trade unions' right to appeal against the decree of the Council of Ministers.

330. The Government further recalled that the complainant in this case, i.e. the Glass, Cement and Soil Industries Workers' Union (Kristal-Is) had announced on 31 October 2003 its decision to strike at the Turkish Glassware Factories and its affiliated workplaces as of 9 December 2003. Since the strike was considered to be prejudicial to national security, it was suspended for 60 days by a decree issued by the Council of Ministers on 4 December 2003 (published in the Official Gazette on 8 December 2003). The Minister of Labour and Social Security appointed Professor Dr. Mr. Fevzi Sahlanan as the official mediator to resolve the conflict under section 34 of Act No. 2822. The trade union lodged an appeal at the 10th Chamber of the Council of State against the decree of the Council of State which suspended the execution of the decree on 12 January 2004. After this decision by the Council of State, the trade union started the strike on 30 January 2004. However, the Council of Ministers issued again on 11 February 2004 a decree suspending the strike for a period of 60 days (published in the Official Gazette on 14 February 2004). As the strike action was suspended for a second time, the Minister of Labour and Social Security reappointed Professor Dr. Mr. Fevzi Sahlanan as the official mediator to resolve the conflict peacefully. With the personal help of the Minister, the abovementioned official mediator mediated successfully between the parties and the relevant trade union and employer organization signed a protocol with a view to concluding a collective labour agreement. As a consequence, the strike decision taken by the complainant was dropped.

331. The Government added on the issue of the unlawful dismissal of the workers from Pasabahce Glassware Factory in Eskisehir (see recommendation (a) above), that, as it had already previously reported, the employer was fined and the relevant trade union was informed of the action taken.

332. With regard to the amendments to the Trade Unions Act No. 2821 and the Collective Agreements, Strike and Lockout Act No. 2822 (see recommendations (c) and (e) above), the Government stated that work on the amendments had been completed by a committee of academics and the draft texts had been submitted to the Ministry of Labour and Social Security in April 2003. The social partners had examined these draft texts and handed in their views and proposals. These draft amendments had also been discussed in academic quarters, panels and symposia. In the meantime, various new developments (new Act on Associations, new Civil Code, amendment to the last paragraph of article 90 of the Constitution, EU Progress Report and 2004 observations by the ILO Committee of Experts on the Application of Conventions and Recommendations) necessitated the re-evaluation of the draft bills amending the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822. The Tripartite Advisory Committee unanimously concluded that the abovementioned draft bills should be examined by a committee established with the participation of members of the committee of academics, experts appointed by the social partners and representatives of the Ministry of Labour and Social Security, taking into consideration the developments which took place concerning the abovementioned laws. It was also decided that this work should be completed by September 2005.

333. With regard to the 50 per cent representativeness requirement found in section 12 of Act No. 2822 (see recommendation (c) above), the Government indicated that this section provided that a trade union representing at least 10 per cent of the workers engaged in a given branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) and more than half of the workers employed in the establishment or each of the establishments to be covered by the collective labour agreement shall have power to conclude a collective labour agreement covering the establishment or establishments in question. In the new draft bill the 10 per cent requirement would be lowered to 5 per cent.

334. With regard to its request for a prompt investigation into the reasons for which 246 trade union members were dismissed on 27 September 2003 (see recommendation (a) above), the Committee notes that according to the Government, the dismissals were found to be unlawful and the employer had been fined. The Committee recalls that although it had already noted this information in its previous examination of the case, it had also observed that the employer had been fined for a violation of section 28 of Labour Act No. 4857 which concerned the obligation to notify the trade union and undertake consultations in case of mass dismissals. The Committee further notes that in its latest communication the Government once again refrained from making observations on the allegations that the dismissed trade unionists were replaced with other workers and that the purpose of the dismissals was to prevent the union from reaching the 51 per cent representativeness requirement. The Committee therefore reiterates its previous request that the Government ensure that the competent labour authorities conduct an independent investigation promptly into the reasons for which 246 trade union members were dismissed on 27 September 2003 and, if it is found that there has been anti-union discrimination, to take all necessary measures with a view to their reinstatement in their posts without loss of pay or, if the competent court were to decide that reinstatement is not possible, to ensure that the dismissed workers receive full compensation for the prejudice suffered. The Committee requests to be kept informed in this respect.

335. Noting that the Government does not provide any information on the 50 trade unionists who were dismissed between 30 September and 10 October 2003 and have filed a lawsuit for unjustified dismissal at the 8th Istanbul Industrial Court (see recommendation (b) above), the Committee once again requests the Government to keep it informed on the progress of the proceedings and to communicate a copy of the final decision once rendered.

336. With regard to its previous request to amend section 12 of the Collective Agreements, Strike and Lockout Act No. 2822 (see recommendation (c) above), the Committee notes that the Government reiterates the previously furnished information according to which section 12 of Act No. 2822 currently indicates that a trade union shall have the power to conclude a collective labour agreement in an enterprise only if it represents at least 10 per cent of the workers engaged in a given branch of activity (excluding the branch of activity covering agriculture, forestry, hunting and fishing) and more than half of the workers employed in the establishment or each of the establishments to be covered by the collective labour agreement. The Government further adds that in the new draft bill the 10 per cent requirement would be lowered to 5 per cent.

337. While taking due note of the steps taken to lower one of the two representativeness requirements set out in section 12 of the Collective Labour Agreements, Strike and Lockout Act No. 2822, the Committee once again recalls that it has requested the Government on more than one occasion to amend the absolute majority requirement which stipulates that a collective agreement may be negotiated only if a trade union represents an absolute majority of workers in an enterprise (see also Case No. 2126, 327th Report, paras. 846 and 847(d)). The Committee recalls once again 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) or they should be allowed to jointly negotiate a collective agreement applicable to the enterprise or bargaining unit. The Committee therefore once again requests the Government to amend section 12 of the Collective Agreements, Strike and Lockout Act No. 2822, so as to bring it in line with the principle according to which, 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, or they should be allowed to jointly negotiate a collective agreement applicable to the enterprise or bargaining unit. The Committee requests to be kept informed in this respect.

338. With regard to its request to amend section 33 of the Collective Labour Agreements, Strike and Lockout Act No. 2822 so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned (see recommendation (e) above), the Committee observes that the Government does not provide any response. The Committee notes that according to the Government, work on the amendments to the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822 by a committee of academics had been completed in April 2003. The draft texts prepared by the committee had been submitted to the Ministry of Labour and Social Security and the social partners handed in their views and proposals on the draft amendments, which were also discussed in the academic quarters, panels and symposia. In the meantime, various new developments (new Act on Associations, new Civil Code, amendment to the last paragraph of article 90 of the Constitution, EU Progress Report and 2004 observations by the ILO Committee of Experts on the Application of Conventions and Recommendations) necessitated the re-evaluation of the two draft bills. The Tripartite Advisory Committee therefore unanimously concluded that the draft bills should be examined by a committee established with the participation of members of the committee of academics, experts appointed by the social partners and representatives of the Ministry of Labour and Social Security, taking into consideration the developments which took place concerning the abovementioned laws. It was also decided that this work should be completed by September 2005.

339. Noting that work on the amendments to the Trade Unions Act No. 2821 and the Collective Labour Agreements, Strike and Lockout Act No. 2822 should normally be completed in September 2005, the Committee once again requests the Government to inform it of the steps taken to ensure that section 33 of Act No. 2822 is appropriately amended so that the authority to decide whether to suspend a strike rests with an independent body which has the confidence of all parties concerned. The Committee notes furthermore that this issue is also the subject of Case No. 2329 examined by the Committee at its current session and refers the Government to the conclusions and recommendations formulated on that case.

Case No. 2038 (Ukraine)

340. The Committee last examined this case at its March 2005 meeting when it expressed the hope that the relevant legislation, which would bring the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs and the Civil Code into conformity with the law of Ukraine on Trade Unions, would soon be adopted (see 336th Report, paras. 121-126).

341. In its communications of 15 April and 17 May 2005, the Government stated that in April 2005, the Ministry of Labour held meetings between representatives of the Government, leaders of employers' associations, All-Ukrainian trade unions and trade union confederations. This led to the signing of a document providing for a specific mechanism to regulate issues relating to the rights and activities of trade unions. On the basis of the outcome of that meeting, the Cabinet of Ministers instructed the relevant authorities to take steps to implement the decisions of the meeting. At the same time, it requested the Supreme Court of Ukraine to examine any relevant judicial decisions, legal actions and substantive violations of trade union rights and proposed to the Office of the Prosecutor General to improve monitoring of compliance with the trade union legislation. Furthermore, the Government informed that, on 28 April 2005, the Ministry of Labour held another meeting between representatives of the Government, the Supreme Council of Ukraine, the Federation of Trade Unions of Ukraine and the Confederation of Free Trade Unions of Ukraine. The meeting was devoted to the discussion of the bill, drafted by the Ministry of Justice, to amend certain legislative acts with a view to bringing current legislation into line with Convention No. 87 and the Law on Trade Unions. Also, the Ministry of Labour has sent a letter to the Cabinet of Ministers proposing that the Ministry of Justice draw up interim provisions on the organizational and legal aspects of the legalization (registration) of trade unions in order to have interim provisions allowing the rights of trade unions to be safeguarded until the adoption of the bill. Furthermore, the Cabinet of Ministers gave instructions to the central executive authorities to issue systematic recommendations to their local offices regarding the application of section 16 of the Law on Trade Unions in a manner consistent with Convention No. 87.

342. The Committee notes this information. It requests the Government to transmit the bill on the amendment of the Law of Ukraine on the State Registration of Legal Persons and Physical Persons/Entrepreneurs and the Civil Code to the Committee of Experts on the Application of Conventions and Recommendations once it has been adopted.

343. Finally, the Committee requests the governments concerned to keep it informed of any developments relating to the following cases.

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

1955 (Colombia) / November 2002 / June 2003

1965 (Panama) / March 2001 / March 2005

1970 (Guatemala) / November 2000 / March 2005

2048 (Morocco) / November 2000 / June 2005

2087 (Uruguay) / March 2005 / -

2111 (Peru) / November 2004 / June 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

2134 (Panama) / June 2003 / June 2005

2142 (Colombia) / March 2002 / March 2003

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

2148 (Togo) / March 2002 / March 2005

2160 (Bolivarian Republic of 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

2189 (China) / June 2005 / -

2192 (Togo) / March 2003 / March 2005

2216 (Russian Federation) / November 2003 / June 2005

2233 (France) / November 2003 / March 2005

2244 (Russian Federation) / June 2005 / -

2251 (Russian Federation) / March 2004 / June 2005

2257 (Canada) / November 2004 / -

2258 (Cuba) / June 2005 / -

2267 (Nigeria) / June 2004 / -

2271 (Uruguay) / June 2004 / March 2005

2276 (Burundi) / November 2004 / -

2277 (Canada) / June 2005 / -

2286 (Peru) / June 2005 / -

2288 (Niger) / March 2004 / March 2005

2293 (Peru) / June 2005 / -

2296 (Chile) / June 2004 / June 2005

2324 (Canada) / March 2005 / -

2346 (Mexico) / June 2005 / -

2357 (Bolivarian Republic of Venezuela) / June 2005 / -

2367 (Costa Rica) / June 2005 / -

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

345. In addition, the Committee has just received information concerning the follow-up of Cases Nos. 1937 (Zimbabwe), 1996 (Uganda), 2017 (Guatemala), 2027 (Zimbabwe), 2050 (Guatemala), 2084 (Costa Rica), 2086 (Paraguay), 2097 (Colombia), 2104 (Costa Rica), 2118 (Hungary), 2153 (Algeria), 2156 (Brazil), 2171 (Sweden), 2188 (Bangladesh), 2199 (Russian Federation), 2208 (El Salvador), 2211 (Peru), 2214 (El Salvador), 2215 (Chile), 2217 (Chile), 2227 (United States), 2236 (Indonesia), 2237 (Colombia), 2249 (Bolivarian Republic of Venezuela), 2255 (Sri Lanka), 2272 (Costa Rica), 2291 (Poland), 2297 (Colombia), 2299 (El Salvador), 2301 (Malaysia), 2327 (Bangladesh), 2328 (Zimbabwe), 2336 (Indonesia), 2338 (Mexico), 2340 (Nepal), 2371 (Bangladesh) and 2395 (Poland), which it will examine at its next meeting.