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 24, 25 and 29 May 1990 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body.

2. The members of the Committee of Argentinian, Australian and Indian nationality were not present during the examination of the cases relating to Argentina (Cases Nos. 1445, 1456, 1496 and 1515), Australia (Case No. 1511) and India (Case No. 1479), respectively.

3. The Committee is currently seized of 63 cases in which complaints have been submitted to the Governments concerned for observations. At its present meeting it examined 31 cases in substance, reaching definitive conclusions in 16 cases and interim conclusions in 15 cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the cases relating to the United States (Case No. 1523), El Salvador (Case No. 1524), Pakistan (Case No. 1525), Canada/Quebec (Case No. 1526), Peru (Case No. 1527), the Federal Republic of Germany (Case No. 1528), the Philippines (Case No. 1529), Nigeria (Case No. 1530), Panama (Case No. 1531), Argentina (Case No. 1532) and Venezuela (Case No. 1533), concerning which it is awaiting information or observations from the Governments concerned. These cases relate to complaints submitted since the last meeting of the Committee. As regards Case No. 1528 (Federal Republic of Germany), the Government has indicated that it must consult the state governments (Länder) before sending its reply given the federal structure existing in the country.

Subsequent adjournments

5. The Committee is still awaiting observations or information from the Governments concerned in the cases relating to Paraguay (Cases Nos. 1435, 1446 and 1519), Cyprus (Case No. 1493), Venezuela (Case No. 1501), the Dominican Republic (Case No. 1504) and India (Cases Nos. 1514 and 1517). As regards Cases Nos. 1434 and 1477 (Colombia), the Government sent observations in communications dated 23 April 1990 but new allegations presented by the complainants on 17 May 1990 have in the meantime been transmitted to the Government for its further comment. The Committee again adjourns these cases and requests the Governments of these countries to transmit the information or observations requested. As regards Case No. 1488 (Guatemala), the Government sent a reply dated 29 May 1990 and the Committee intends to examine this case at its next session.

6. As regards Case No. 1337 (Nepal), the Committee last examined this case at its meeting in November 1989 (see 268th Report, paras. 336 to 357) and, given the seriousness of the allegations, urged the Government to supply specific and detailed information on all the allegations pending in this case. In a communication dated 14 May 1990, the Government states that on 16 April His Majesty the King suspended certain statutory restrictions so as to establish more democratic values and individual rights; the right to freedom of association has been restored and a Constitution Drafting Commission has been set up to draft a new Constitution. The Government adds that with such a massive political change in the country, the complaint of the Nepal National Teachers' Association (NNTA) does not now need any action. While taking due note of these positive developments in general, the Committee would point out that in order to be able to reach final conclusions on the whole case in full knowledge of the facts, it would appreciate receiving a detailed reply from the Government on the specific allegations made by the complainant and still pending before the Committee, in particular concerning the seven union officials allegedly killed in 1985, the 15 detained trade unionists and the 96 teachers allegedly dismissed or transferred because of their involvement in trade union activities.

7. As regards Case No. 1500 (China), in a communication of 4 April 1990 the Government states that the Committee, in its examination of this case, made some unjustifiable requests, failing to give careful consideration of the views and information that it had provided, and expresses its deep regret over this. The Government indicates that it is currently undertaking further analysis of the allegations and that it will reply to refute them in order to clarify the facts. However, it states that it cannot possibly do so within two or three months. The Committee urges the Government to provide the information requested as soon as possible so that this case may be examined at its next meeting.

8. As regards Case No. 1511 (Australia), the Committee decided to adjourn its consideration of this case until its next meeting and asks the Government to keep it informed as to future developments in relation to the dispute between the Australian Federation of Air Pilots and the airlines, and in particular as to the outcome of the Federation's appeal against the decision of the Supreme Court of Victoria in relation to the common law action against the Federation and its officials, and as to the Federation's application to be made party to the awards of the Australian Industrial Relations Commission governing the employment of pilots employed by the domestic airlines in Australia.

9. As regards Case No. 1518 (United Kingdom), by communications dated 23 February and 23 March 1990 the Government indicates it intends to have new permanent pay determination arrangements for teachers in England and Wales in place for the April 1991 pay settlement. The Secretary of State for Education and Science held a series of meetings with the relevant trade unions, including the National Union of Teachers, in late 1989. The Government states that it does not underestimate the difficulties involved in reaching agreements on this issue: not least because of differences of view between the various unions involved. Nevertheless, the Government considers that there is a desire on all sides to make progress, and indicates that it intends vigorously to pursue the matter. In these circumstances, the Government feels that it would be more suitable for this case to be examined at the November 1990 meeting of the Committee. The Committee notes the preliminary observations of the Government, and looks forward to receiving its detailed response.

10. As regards Case No. 1522 (Colombia), the Government sends its observations in two communications, one received on 27 April and the other dated 14 May 1990; however, given their contents, these texts have been transmitted to the complainant organisations for their comments.

11. At its February-March 1990 Session, the Governing Body approved the Committee's interim conclusions and recommendations in Case No. 1508 against the Government of Sudan, in particular calling on the Government to spare the life of Dr. Mamoun Ahmed Hussein, who had been sentenced to death for organising a strike. By communications dated 5 and 21 May 1990 the Government informs the Committee that, by Presidential Decree, the execution of Dr. Hussein and the prison sentence imposed on Dr. Said Abdallah have been lifted and they have been released immediately. The Committee notes this information with satisfaction and requests the Government to reply to the remaining requests for action and information listed in its 270th Report, paragraph 412, so that it will be in a position to continue its examination of all the outstanding aspects of this case at its next meeting, as well as the new allegations transmitted by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 7 May 1990.

URGENT APPEALS

12. As regards Cases Nos. 1341 (Paraguay), 1441 and 1491 (El Salvador) and 1520 (Haiti), the Committee observes that, despite the time which has elapsed since the presentation of these complaints and the seriousness of the allegations contained therein, these Governments have not transmitted the observations or information which had been requested. The Committee draws the attention of these Governments to the fact that, in accordance 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 on the substance of these cases at its next meeting even if the observations requested from the Governments have not been received in due time. The Committee accordingly requests the Governments of Paraguay, El Salvador and Haiti 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. 1431 (Indonesia), 1499 (Morocco) and 1521 (Turkey).

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

14. As regards Case No. 1353 (Philippines), the Committee had requested the Government to keep it informed of developments in the Escalante trial. In a communication dated 10 April 1990, the Government states that the criminal cases concerning the "Escalante massacre" have already been submitted for decision by the courts, and reiterates that it shall furnish a copy of the courts' decision as soon as it is handed down. The Committee notes that the Government will continue supplying information of developments in this case.

15. As regards Case No. 1495 (Philippines), the Committee had reached definitive conclusions at its meeting in November 1989 (see 268th Report, paras. 214-247), and requested the Government to consider revising Proclamation No. 50 or to take other measures with a view to ensuring that, in future, changes in property ownership would not remove the right of employees to bargain collectively or threaten unionised workers and their organisations. In a communication dated 10 April 1990, the Government states that in relation to the employees of the Cebu Plaza Hotel, whose services were terminated upon the privatisation of this hotel, under the law they are entitled to appropriate separation benefits, which were indeed ordered to be paid to them. Regarding Proclamation No. 50, the Government explains the reasons for its adoption and that it was never intended to subvert the recognised rights and freedoms of workers. The Government adds that in order to counteract the effects that Proclamation No. 50 might have on the rights of employees, two bills have been proposed for adoption by the legislature: Senate Bills Nos. 303 and 1255. These bills have already been scheduled for second reading and will be adopted if they pass third reading before Parliament. The Committee takes note of this detailed information and expresses the hope that these legislative provisions will be adopted so that the right to collective bargaining and the right to organise are protected in cases of proprietorial change.

16. As regards Case No. 1376 (Colombia), in a communication of 23 April 1990, the Government refers to the substantial reduction in the number of deaths and disappearances of unionists in 1989 and in the first half of 1990, thanks to the policy on human rights which has been implemented and to the energetic steps taken to dismantle the so-called paramilitary groups, as well as to the adoption of measures needed to modernise the judicial system. The Committee notes this information, and proposes to continue its examination of this situation in the framework of the other cases still pending against Colombia.

17. As regards Case No. 1420 (United States/Puerto Rico), which was examined in November 1988 (259th Report, paras. 219-235), the Committee requested the Government to supply a copy of the final decision in the civil case before the Puerto Rican Supreme Court, concerning the methods of remedying the illegal practice of blacklisting of trade union officials. To its communication of 12 February 1990, the Government attaches a copy of the Supreme Court decision of 21 November 1988, which upheld the initial judgement declaring illegal and unconstitutional the practice of the Government of Puerto Rico - specifically its Police Department - of maintaining lists of people, including union members, suspected of being subversive; it affirmed the lower court's order that all files and pertinent material assembled by such illegal practices be delivered to the people alluded to or mentioned in the files. It appears from the voluminous documentation annexed to the Government's communication that, as a result of various legal proceedings, the current Supreme Court proceedings affect one aspect of the execution of the main judgement which is not of direct concern to the Committee's recommendation in this case. It accordingly notes with satisfaction that blacklisting will not be continued, that all material collected by such means will be delivered to the persons identified therein, and decides that the case does not call for further examination.

18. As regards Case No. 1467 (United States), the Committee had requested the Government to keep it informed on developments in the judicial proceedings concerning the subcontracting grievance, which were before the Supreme Court, as well as on the labour relations situation in Agipcoal (formerly Enoxy Coal) USA Inc. In a communication of 18 May 1990, the Government states that the Supreme Court denied without comment on 8 January 1990, the petition for a writ of certiorari filed by the employer, and the case was returned to the Court of Appeals. On 2 April 1990, the Court of Appeals reissued its mandate and remanded the case to the District Court for the Eastern District of Kentucky to be adjudicated on the merits, where proceedings are currently continuing. Concerning the labour relations situation, the Government refers to annexed letters describing, on the one hand, how the employer and the United Mine Workers of America (UMWA) are engaged in numerous collective bargaining sessions and, on the other hand, the union's frustration that company officials do not participate directly in the negotiations but use outside counsel. The Committee notes this detailed information and requests the Government to inform it of the final decision of the District Court in this case.

19. The Committee reached definitive conclusions in Case No. 1431 (Indonesia) in May 1989 (265th Report, paras. 104-137), referring its comments on certain legislation to the Committee of Experts on the Application of Conventions and Recommendations, and requesting the Government to consider reviewing certain other texts which raised problems for freedom of association. In communications dated 28 April and 7 May 1990, the Government informs the Committee that: (a) Presidential Decree No. 123 of 1963 (containing a too broad list of enterprises and services in which strikes are banned) has not been implemented and steps are being taken to withdraw it; the repeal process will, however, take time because of the various steps required; (b) Act. No. 22 of 1957 (regulating conciliation and arbitration during strikes) does not allow the Government to approve or disapprove a strike, its role being merely to notify the intention to strike by one party to the other party; (c) the Teachers' Association (PGRI) has now been registered as a trade union by virtue of Decree No. 197 of 5 April 1990, and will shortly join the tripartite bodies having union representation; (d) at present there is no need felt for public servants to have collective agreements because government regulations cover these employees without exception for conditions of employment (such as salaries and welfare programmes); the Government stresses that public servants are free to join any organisation they choose; (e) for state enterprises, particularly those under the Department of Mining and Energy, existing employee organisations have modified themselves to function more like unions; the Government states that bargaining machinery for collective agreements is already the usual procedure. In addition, the Government emphasises its commitment to human rights, democracy, improvement of the quality of life and employment creation. It repeats that Indonesian workers enjoy freedom of association, the right to bargain collectively and the right to strike. The Committee notes with interest the developments for the Teachers' Association (now Union), for Presidential Decree No. 123, and for collective bargaining in state enterprises. It would point out, however, that despite the fact that there is no specific legislative ban on the unionisation of public servants, the situation in practice for such workers is tantamount to a restriction because of the limited nature of the "associations" they can form. If there is real freedom of choice for government workers, Presidential Decree No. 82 of 1971, examined in the Committee's 265th Report, should be amended to reflect that choice. The Committee refers the further information on collective bargaining to the Committee of Experts for examination in the context of Convention No. 98.

20. As regards Case No. 1438 (Canada), the Government advised in a communication dated 2 April 1990 that it would provide the information requested on the industrial relations situation in its next report on Convention No. 87 to the Committee of Experts on the Application of Conventions and Recommendations. The Committee takes note of this information.

21. As regards Case No. 1449 (Mali), in a communication dated 3 January 1990 the Government sends certain information in reply to the Committee's recommendations made in its 259th Report, approved by the Governing Body at its November 1988 Session. It states that the Supreme Court of Mali rendered Decision No. 57 on 14 November 1988, overturning the decision of the Ministry of Employment and the Public Service which had ordered the dismissal of Issa N'Diaye. The Government adds, however, that the Supreme Court, at the same time, confirmed the suspension of this worker. In a subsequent communication dated 15 May 1990, the Government supplies the text of Order No. 90-1402 of 11 May 1990 by which the Ministry of Employment and the Public Service retroactively re-establishes Mr. N'Diaye's rights to promotion and wages. The Committee notes Mr. N'Diaye's reinstatement with satisfaction. It would, however, again insist that the Government take measures for the reinstatement of all those workers in the teaching profession who were dismissed for strike action after their pay had been withheld over several months between 1986 and 1988. The Committee requests the Government to continue supplying information on developments in the situation of the teachers who were subject to anti-union reprisals.

22. As regards Case No. 1480 (Malaysia), the Committee had asked the Government to take the necessary measures to amend sections 8 and 12 of the Trade Unions Act, 1959, so as to bring them into conformity with the principles of freedom of association, and to advise it of the decision of the Minister in relation to an appeal by the National Union of Electronic Industry Workers against the refusal by the Director-General of Trade Unions to accept its application for registration (see 270th Report, para. 123). By a communication dated 18 April 1990, the Government indicates that even though sections 8 and 12 of the 1959 Act are incompatible with Article 2 of Convention No. 87, they are not in breach of the supreme law of the country. In consequence, it calls upon the Committee to consider this case "in its proper perspective and in an objective and positive manner". The requirement that trade unions be registered on a sectoral basis in Malaysia is nothing unusual and is to be found in the law of many countries. Furthermore, "the free and independent functioning of trade unions in Malaysia is well beyond reproach". The Government also indicates that, after careful consideration, the Minister has decided not to interfere with the original decision of the Director-General of Trade Unions in relation to the registration of the National Union of Electronic Industry Workers. The Committee views this response with great concern. It has examined the legislative provisions in question on no fewer than five occasions, and on each such occasion has asked the Government to amend its laws so as to bring them into conformity with the principles of freedom of association. It is not to the point that these provisions are in conformity with national law, if they are in conflict (as the Government concedes) with fundamental principles of international law. As regards the Minister's decision to uphold the Director-General's refusal to register the National Union of Electronic Industry Workers, the Committee can only express its profound disquiet at the fact that workers in this industry continue to be denied the right to establish and to join organisations of their own choosing.

23. Finally, as regards Cases Nos. 1054, 1388 and 1473 (Morocco), 1168 (El Salvador), 1189 (Kenya), 1369 (Honduras), 1385 (New Zealand), 1396 (Haiti), 1408 and 1485 (Venezuela), 1417, 1461, 1481 and 1509 (Brazil), 1428, 1468 and 1471 (India) and 1482 (Paraguay), the Committee again requests these Governments to keep it informed of developments in these various matters. The Committee hopes that these Governments will communicate the information requested at an early date.