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 23, 24 and 26 February 1987 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body.

2. The members of the Committee of Indian, Spanish, French and Australian nationality were not present during the examination of the cases relating to India (Case No. 1346), Spain (Cases Nos. 1358 and 1374), France (Case No. 1364) and Australia/Victoria (Case No. 1371), respectively.

3. The Committee is currently seized of 63 cases (this figure includes the cases relating to Turkey (Cases Nos. 997, 999 and 1029) and France (Case No. 1364) which are examined in the 249th and 250th Reports respectively) in which the complaints have been submitted to the governments concerned for observations. At its present meeting it examined 26 cases in substance, reaching definitive conclusions in 18 cases and interim conclusions in 8 cases; the remaining cases were adjourned for the various reasons set out in the following paragraphs.

4. New cases: The Committee adjourned until its next meeting the cases relating to Greece (Case No. 1384), Peru (Case No. 1386), Morocco (Case No. 1388), United Kingdom (Case No. 1391) and Venezuela (Case No. 1392) concerning which it is still awaiting information or observations from the governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

5. Adjournments: The Committee awaits observations or information from the governments or complainants concerning the cases relating to Nicaragua (Cases Nos. 1298, 1344 and 1372), Morocco (Case No. 1340), Portugal (Case No. 1382) and Pakistan (Case No. 1383). As regards Case No. 1352 (Israel), the Committee is still awaiting receipt of further information requested from the complainant organisation. As regards Cases Nos. 1271 and 1369 (Honduras) and 1385 (New Zealand), the Governments concerned have transmitted certain observations and additional information is awaited. The Committee again adjourned these cases and requests the governments of these countries to transmit the information or observations requested.

6. As regards Cases Nos. 1273 (El Salvador), 1327 (Tunisia), 1341 (Paraguay), 1362 (Spain), 1389 (Norway) and 1390 (Israel) the Committee has received the observations of these governments and intends to examine these cases in substance at its next meeting.

7. As regards Case No. 1190 (Peru), the Committee had requested the Government to supply information on the alleged detention of trade unionists in 1983 following a national strike (see 233rd Report, para. 295). In a communication dated 9 October 1986, the Government indicates that Jorge Ravines Bartre and Juan Calle Mendoza are listed as "not detained" in the report presented by the 4th Criminal Prosecutor's Office to the 19th Magistrate's Court in Lima. The Government adds that in this report there is no mention of any proceedings being taken against Mr. Hernán Espinoza Segovia. Lastly, the Government indicates that, as soon as it receives additional information from the judicial authorities, it will transmit this to the Committee.

8. As regards Case No. 1199 (Peru), which the Committee examined in its 233rd Report (see, in particular, para. 295), the Government, in its communication of 23 October 1986, states that the investigation into the death of the miner Gelacio Bernado Mendoza and the physical attacks on other workers of the Santa Luisa S.A. mining company in March 1983, has not resulted in the identification of the person, or persons, responsible; there are, therefore, no proceedings under way concerning the matter. The Committee takes note of this information and regrets that it was not possible to identify the guilty parties.

9. In connection with Case No. 1250 (Belgium), which the Committee adjourned at its February 1986 meeting at the request of the Government (see 243rd Report, para. 8, February 1986), it had expressed the wish to have the decision of the Council of State concerning the National Federation of Independent Trade Union's (UNSI) appeal to annul the Order of the Minister of Employment and Labour refusing this organisation a seat on the National Labour Council. The Committee would recall, as it did already in Case No. 1373 (Belgium) in its 246th Report, para. 11 (November 1986) that its competence to examine allegations is not subject to the exhaustion of national procedures and that it will only suspend its examination of cases for a reasonable period to await a court's decision. The Government states in its communication of 14 January 1987 that it does not have any additional information on the matter and that it will not present further observations. It points out that the procedures before the Council of State, because of their formal and distinct character, usually take some time to be heard and it is difficult to estimate when a decision will be handed down. The Committee notes that the original UNSI complaint was presented to the Committee on 18 June 1983 and that this organisation appealed to the Council of State on 5 December 1985. The Committee considers that it can only adjourn its examination of this case for a reasonable period and consequently, given the time that has elapsed since the complaint was presented, intends to examine the substance of this matter at its next meeting.

10. As regards Case No. 1373 (Belgium) which concerns a complaint presented to the Committee in July 1986 by the Belgian Federation of Automobile and Cycle Industries (FEBIAC) and which also concerns a question of representativity within the Joint Committee for garages (see 246th Report, para. 11), the Committee had adjourned this case in view of the Government's explanation that this employers' organisation had presented an appeal to the Council of State requesting the annulment of the decision that it is not considered as being representative for the garage sector. The Committee takes note of the Government's reply dated 14 January 1987 to the effect that, as in Case No. 1250, the trials pending before the Council of State take some time and it is not possible to estimate when a decision will be handed down. The Committee would recall that it can only adjourn its examination of the case for a reasonable period and thus hopes to have the decision of the Council of State at an early date.

11. As regards Case No. 1375 (Spain), the Committee has already received the Government's reply. The Committee notes that an appeal is pending before the competent courts concerning the constitutionality of one provision of the 1984 State General Budget Act, whose coverage of certain categories of workers is objected to by the complainant organisation. The Committee, recalling that its procedures are not subject to the exhaustion of procedures at the national level, decides to examine this case in substance at its next meeting.

URGENT APPEALS

12. The Committee notes that in spite of the time which has elapsed since the last examination of Cases Nos. 953, 973 and 1168 (El Salvador), Cases Nos. 1176, 1195, 1215 and 1262 (Guatemala), Case No. 1219 (Liberia), Cases Nos. 1275 and 1368 (Paraguay), Case No. 1337 (Nepal), and Case No. 1361 (Nicaragua), the observations and information requested of the Governments have not yet been received. The Committee draws these Governments' attention to the fact that, in conformity with the procedural rules set out in paragraph 17 of the Committee's 127th Report approved by the Governing Body, it will present a report at its next meeting on the substance of these cases even if the Governments' observations have not been received at that date. The Committee accordingly requests these governments to transmit their observations as a matter of urgency.

13. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Cases Nos. 997, 999 and 1029 (Turkey), 1330 (Guyana), 1367 (Peru), 1370 (Portugal) and 1379 (Fiji).

Effect given to the recommendations of the Committeeand of the Governing Body

14. As regards Case No. 792 (Japan) the Committee recalls that, at its meeting in May 1986 (244th Report, para. 15, approved by the Governing Body at its 233rd Session, May-June 1986), it noted information transmitted by the World Confederation of Organisations of the Teaching Profession and observations thereon submitted by the Government concerning sentences passed by the High Court of Tokyo in cases concerning Mr. Makieda and Mr. Masuda, leaders of the Japan Teachers' Union (NIKKYOSO). The Committee recalled that it has acknowledged that the right to strike may be restricted or even prohibited in the civil service - civil servants being those who act on behalf of the public authorities - or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee pointed out that teachers do not fall within the above definition of essential services. It drew the Government's attention - as had the Committee of Experts on the Application of Conventions and Recommendations in its observations on Japan's application of Convention No. 87 - to the principle that penal sanctions should only be imposed where there are violations of strike prohibitions that are in conformity with the principles of freedom of association. The Committee accordingly urged the Government to re-examine its legislation in the light of the above considerations and to keep it informed of the outcome of the appeal against the prison sentences lodged by the union leaders in this case.

In a communication dated 16 January 1987, the Government of Japan, referring to the above statement of the Committee, suggests that these conclusions reached by the Committee did not wholly correspond with those reached in the same case in November 1978 (187th Report, paras. 69-141) in which, the Government points out, the Committee expressly stated that "as regards public officials, recognition of the principle of freedom of association does not necessarily imply the right to strike" (para. 135 of the 187th Report) and that "having regard to the fact that strike action is prohibited by law as regards this category of workers, the imposition of administrative disciplinary sanctions, or, as in the present case, the arrest and prosecution under the ordinary law of persons who instigate or incite local public personnel to strike cannot be said to be violations of the principle of freedom of association" (ibid., para. 138).

The Committee would explain that, in reaching the conclusions it did in 1978 in the case before it, it had regard to the principles cited above by the Government and to the entire circumstances in which the strike instigated by the persons who were ultimately convicted took place. The conclusions were based on certain facts or indications that the said strike was, at least to a degree, political in character and, in addition, that it had been pre-arranged very far in advance of its taking place. Since the Committee has, on a number of occasions, pointed out that strikes of a political character, as well as strikes decided systematically long before negotiations take place do not fall within the scope of the principle of freedom of association (see Digest of Decisions and Principles of CFA, para. 372), it held in 1978 that the action taken under the law against the teachers in question could not, in the circumstances, constitute a violation of freedom of association.

As regards the right to strike for public servants the Committee would recall that, prior to its General Survey of 1983, the Committee of Experts on the Application of Conventions and Recommendations had generally followed the principle that, as regards the public service, recognition of the principle of freedom of association did not necessarily imply the right to strike. Already, however, in its General Surveys of 1959 and 1973, the Committee of Experts had suggested that the outright prohibition of the right to strike should be confined to public servants acting in their capacity as agents of the public authority or to those services that are strictly essential. (See RCE, Report III, Part IV, ILC, 43rd Session 1959, para. 68 and RCE, Report III, Part 4B, ILC 58th Session, 1973, para. 109.) The Committee of Experts redefined this principle in 1983 in its General Survey on freedom of association, pointing out that services that are essential in the strict sense of the term are those whose interruption would endanger the life, personal safety or health of the whole or part of the population. (RCE, Report III, Part 4B, ILC, 69th Session, 1983, para. 214.) This principle has since been emphasised on numerous occasions by the Governing Body on the recommendation of the Committee.

In this connection the Committee considers it appropriate to recall that the Fact-Finding and Conciliation Commission on Freedom of Association concerning persons employed in the Public Service in Japan, in 1966, commenting on the pledge made by the General Council of Trade Unions of Japan (SOHYO) to pursue its goal of the total restoration of the right to strike for public employees, and the Government's view that the absolute prohibition of the right to strike should be maintained indefinitely in the public sector, stated that both views were unduly rigid and unrealistic. It believed that in Japan, as in other countries, a reasonable compromise was both possible and necessary. (Report of the Fact Finding and Conciliation Commission on Freedom of Association concerning Persons Employed in the Public Sector in Japan, Official Bulletin, Vol. XLIX, No.1, January 1966, Special Supplement, paras. 2134-2135.)

The Committee draws the above principles and explanations to the attention of the Government for further consideration at the national level.

15. As regards Case No. 1040 (Central African Republic), the Committee noted at its November 1986 meeting that the Minister of Labour agreed before the Committee on the Application of Standards of the 72nd International Labour Conference (June 1986) that a direct contacts mission be sent to the Central African Republic in order to examine the questions raised in the comments formulated by the Committee of Experts on the Application of Conventions and Recommendations concerning Convention No. 87. Subsequently, in a communication of 13 January 1987 the Government confirmed its agreement that this mission take place. The Committee welcomes the positive attitude of the Government of the Central African Republic and hopes that it will be able to indicate soon the most acceptable dates on which the direct contacts mission can take place.

16. As regards Case No. 1074 (United States), the Committee had requested the Government to continue to inform it of the outcome of the appeals pending before various appeal bodies against the dismissals of air traffic controllers after a strike in 1981. In a communication of 7 November 1986, the Government states that, as at 27 October 1986, 444 reinstatements had been ordered and that, following the issuance of the "lead case" decision in May 1984, 3,378 controllers had renewed their appeals, 31 of which were still pending. 490 of the renewed appeals were subsequently dismissed voluntarily by the appellants and 1,086 were dismissed by the appeal body, the Federal Circuit Court. The Government states that in 1,754 cases the Court affirmed the controllers' removal; in 12 cases it reversed the removal orders and 5 cases were remanded to the Merit Systems Protection Board. The Committee takes note of the information provided by the Government and requests it to continue to inform the Committee of the outcome of the cases still pending before appeal bodies.

17. As regards Case No. 1282 (Morocco), the Committee had requested the Government at its November 1985 meeting (see 241st Report, para. 421) to keep it informed of the outcome of the appeals lodged by the workers who had been dismissed for having participated in 48-hour and 24-hour strikes in January and February 1984 in the Computers Vincent undertaking in Mohammedia. In a communication dated 13 November 1986, the Government states that the court of first instance at Mohammedia, in a judgement dated 19 December 1985, ordered the employer to compensate the dismissed workers. The Government points out, however, that this judgement did not satisfy the parties, both of whom have appealed to the appropriate appeals court. The Committee takes note of this information and awaits receipt from the Government of a copy of the judgement to be handed down in these cases.

18. As regards Case No. 1304 (Costa Rica), concerning a representation presented by various trade union organisations under article 24 of the ILO Constitution for the non-observance by Costa Rica of international labour Conventions, the Committee examined this representation at its May 1985 meeting (see 240th Report, paras. 65 to 102) and, in its recommendations, inter alia, drew the Government's attention to the fact that the ILO's technical assistance might contribute effectively to the drafting of a text to reform the Labour Code so as to bring it into conformity with Conventions Nos. 87 and 98. In a communication of 26 December 1985, the Government stated that, as regards the request for the ILO's technical assistance, it would make a formal request to the ILO Office in San José. Subsequently, in a communication of 24 March 1986, the Government states that it will try to give effect to what was requested in this case. The Committee would once again draw the Government's attention to the need to amend the Labour Code so as to bring it into conformity with the international Conventions ratified by Costa Rica. It therefore invites the Government to consider the possibility of accepting the ILO's offer of technical assistance and to inform it as soon as possible of the decision taken in this respect.

19. As regards Case No. 1353 (Philippines) in which the Committee requested the Government to keep it informed of developments concerning the investigation related to the Escalante massacre (see 246th Report, November 1986), the Government, in a letter dated 20 January 1987, states that the military authorities in Negros Province have reported that 29 of the 46 accused are now in their custody. These are eight soldiers, 15 policemen and six firemen who allegedly took part in the massacre of 20 September 1985. Warrants for the arrest of all the accused have been issued by the court and no bail was recommended by the prosecutors. The Government explains why, in a related development, the Sandiganbayan (the special court investigating the Escalante case) decided to drop the multiple murder and attempted murder charges against one of the accused, the former Negros del Norte Governor Armando Gustillo. The Committee takes note of this information and requests the Government to continue to supply information on progress in the investigation, in particular details concerning the trial of the accused.

20. As regards the case concerning Greece (Case No. 1354) the Committee had examined this case at its February 1986 meeting and presented definitive conclusions to the Governing Body (see 243rd Report, paras. 312-343). At its meeting in November 1986, the Committee noted that on 30 May 1986 the Government had sent certain information on the effect given to its recommendations and that on 17 June 1986 the complainants had supplied information on some aspects of this case, in which they allege interference in trade union activities by the Government and by the courts. The Government, to whom the information was transmitted, replied in a communication dated 27 October 1986.

In its reply, the Government observes that the most recent allegations of the complainants refer to questions which were examined by the Committee in its 243rd Report. It considers that this report of the Committee has a definitive character, that it was adopted by the Governing Body of the ILO and that it may not be the subject of re-examination, modification or revision. However, it reiterates the opinion which it had previously expressed on the various allegations, and adds that the court which appointed on 4 December 1985 an interim administrative council of the CGTG entrusted with convening a congress within the next four months, took account of the results of the elections of the 22nd Congress of 1983 and appointed trade unionists belonging to all trade union tendencies, in proportion to their electoral strength at the time of the last congress. The Government considers that the complainants' allegation concerning the convening of an extraordinary congress by the CGTG administration (namely the Group of 26) is not an argument against the appointment by the court of an interim administrative council since the Magistrate's Court of Athens had, as early as 25 November 1985, issued an order staying the execution of the decisions of the the Group of 26; consequently, any such congress, if it had taken place, would have been ipso facto null and void, and this would have resulted in the prolongation of the crisis.

The Government explains once again the reasons for which it adopted, for a limited period, the measures to protect the national economy and the accompanying safeguards. It states that the legislative text has a duration which is limited to the period 1986-87 and adds that a national general collective agreement has provided for minimum wage increases at the national level for 1986. Furthermore, the Government repeats the information which it had already furnished on the subject of the 23rd Pan-Hellenic Congress of the CGTG in its communication of 30 May 1986. It mentions, in particular, the very large number of international and foreign trade union organisations which attended the work of the Congress. Thus, according to the Govenment, the crisis created in the trade union affairs of the country is gradually moving towards a definitive solution thanks to the trade union organisations concerned and the legal and statutory procedures, without any intervention by the State.

The Committee has taken note of the additional information supplied by the complainants as well as by the Government. It observes that the complainants denounce the manoeuvres of the administration which had been appointed by the courts in the organisation of this congress. It also observes that the Government refutes this allegation and that it indicates that in appointing an interim administrative council to convene a congress within the next four months, the court took account of the results of the election of the 22nd Congress of 1983 and appointed trade unionists from all trade union tendencies in proportion to their electoral strength at the time of the last Congress. The Committee notes that in accordance with the decision of the court, the Congress was in fact held within the next four months, that a large number of the 609 representatives of the trade union organisations of the country who should have participated abstained since the new administration of the CGTG had been elected by only 290 representatives, and that representatives of many international and foreign trade union organisations attended the Congress. The Committee considers that even if a large number of delegates abstained from designating the new administration of the CGTG, it is not within the competence of the Committee to assess the reasons for which these delegates abstained, unless their decision was the result of interference by the Government in trade union affairs.

In addition, as regards measures interfering in the wage-fixing process the Committee hopes that in future the Government will take the necessary steps to ensure that the matters regarding the wage-fixing process are resolved by negotiation between the parties.

21. As regards Cases Nos. 1016 and 1258 (El Salvador), 1100 (India), 1157 and 1192 (Philippines), 1191 (Chile), 1216, 1268 and 1307 (Honduras), 1230 and 1348 (Ecuador), 1261 (United Kingdom), 1270, 1294, 1313 and 1331 (Brazil), 1279 (Portugal), 1296 (Antigua and Barbuda), 1350 (Canada/British Columbia) and 1360 (Dominican Republic), the Committee again requests these Governments to keep it informed of developments in these cases. The Committee hopes that these Governments will communicate the information requested at an early date.

22. As regards Cases Nos. 988 and 1003 (Sri Lanka), 1175 (Pakistan), 1189 (Kenya) and 1277 and 1288 (Dominican Republic), the Committee regrets that despite repeated appeals the governments concerned have not replied to its request to be kept informed of developments in these various matters. The Committee would recall that:

In Cases Nos. 988 and 1003 (Sri Lanka), it had requested the Government to endeavour to reinstate workers who had been unemployed for more than five years for having participated in a strike which took place in July 1980 and to transmit its observations on certain allegations formulated at a later stage by the Trade Unions International of Public and Allied Employees according to which the Government continued to take reprisals against civil servants who had participated in the strike. The Committee would again draw the Government's attention to the principle that the imposition of excessively severe measures, such as mass dismissals or refusal to reinstate workers because of participation in a strike which is recognised as a legitimate means of defending the workers' occupational interests, constitutes a violation of freedom of association.

In Case No. 1175 (Pakistan), the Committee had requested the Government to keep it informed of any decisions taken relating to acts of anti-union discrimination (dismissals, downgrading, transfer). The Committee had requested the Government to submit these cases to the National Commission of Industrial Relations or to the judicial authorities in order to obtain the reinstatement of those workers who had been dismissed for legitimate trade union activities. The Committee regrets once again that the Government has not replied to this request for information.

In Case No. 1189 (Kenya), the Committee had requested the Government to keep it informed of the measures taken to permit the establishment of trade unions in the public service and to send information on the assets that were confiscated following the cancellation of the registration of the Association of Public Servants of Kenya. The Committee would again draw the Government's attention to the importance of the principle that all workers, including public servants, without distinction whatsoever, should be able to establish and join organisations of their own choosing, without previous authorisation, to further and defend their occupational interests. It regrets that the Government has not replied to its request for information on the confiscated assets and draws the Government's attention to the principle that when a union is dissolved, its assets should be distributed among its members or handed over to the organisation which succeeds it where that organisation or organisations pursue the aims for which the dissolved union was established and do so in the same spirit.

In Cases Nos. 1277 and 1288 (Dominican Republic), the Committee had requested the Government to carry out an impartial judicial inquiry into the nature of the protest demonstration of April 1984 as well as into the deaths and injuries which had occurred on that occasion and to keep it informed of the results of such an inquiry. The Committee regrets that the Government has not replied to its request for information and would stress the importance of carrying out an independent judicial inquiry into the protest movements and the deaths and injuries which occurred at that time so as to identify those responsible.

23. The Committee expresses the firm hope that, in all these cases, the governments concerned will take the necessary measures to give full effect to the recommendations of the Committee and of the Governing Body.