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 1, 2, 5 and 7 November 1990 under the chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body.

2. The members of the Committee of Australian and British nationality were not present during the examination of the cases relating to Australia (Case No. 1511) and the United Kingdom (Case No. 1518), respectively.

3. The Committee is currently seized of 70 cases in which complaints have been submitted to the Governments concerned for observations. At its present meeting it examined 19 cases in substance, reaching definitive conclusions in eight cases and interim conclusions in 11 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 Pakistan (Case No. 1534), Spain (Case No. 1536), Honduras (Cases Nos. 1538 and 1554), Guatemala (Case No. 1539), Peru (Case No. 1541), Malaysia (Cases Nos. 1542 and 1552), the United States (Case No. 1543), Ecuador (Case No. 1544), Poland (Case No. 1545), Paraguay (Case No. 1546), Canada/British Columbia (Case No. 1547), the Dominican Republic (Case No. 1549), India (Case No. 1550), Argentina (Case No. 1551), the United Kingdom/Hong Kong (Case No. 1553), Colombia (Case No. 1555), and Iraq (Case No. 1556) concerning which it is awaiting information or observations from the Governments concerned. As regards Case No. 1540 (United Kingdom) the Government has requested the adjournment of this case so as to be able to send a complete reply. These cases relate to complaints submitted since the last meeting of the Committee.

Subsequent adjournments

5. The Committee is still awaiting observations or information from the Governments concerned in the cases relating to El Salvador (Case No. 1273), Nepal (Case No. 1337), the Philippines (Cases Nos. 1426 and 1444), Peru (Cases Nos. 1478/1484), India (Case No. 1479), Morocco (Case No. 1499), Paraguay (Case No. 1510), Colombia (Case No. 1522), Canada/Quebec (Case No. 1526), Nigeria (Case No. 1530) and Argentina (Case No. 1532). As regards Cases Nos. 1525 (Pakistan), 1530 (Nigeria) and 1531 (Panama), the Governments sent partial observations in communications dated 17 October, 29 October and 30 August 1990, respectively. As regards Case No. 1528 (Germany), in a communication of 29 October 1990 the Government requested the adjournment of the Case and indicated that it would send its observations before the next session of the Governing Body. Concerning Case No. 1514 (India), the Government, in a communication dated 29 October 1990, forwarded certain information and requested its adjournment until the next Committee's meeting in February 1991. The Committee again adjourns these cases and requests the Governments of these countries to transmit the information or observations requested.

6. The Committee also adjourned the case concerning Australia (Case No. 1511), in respect of which it asked its Chairman to request the Government and the complainant to provide any additional information they might want to submit in that case.

7. As regards Case No. 1517 (India), Case No. 1523 (United States), Case No. 1533 (Venezuela) and Case No. 1548 (Peru), the Committee intends to examine these cases in substance at its next meeting.

8. As regards Case No. 1535 (Venezuela) which concerns the draft labour law, the Government states in its communication of 10 October 1990 that it is highly interested in fully complying with Conventions Nos. 87 and 98 and therefore has requested the Office to comment on the draft. These comments have in turn been submitted to the various legislative bodies which are involved in discussing the draft. The Committee requests the Government to keep it informed of developments in the legislative work.

URGENT APPEALS

9. As regards Cases Nos. 1435, 1446 and 1519 (Paraguay), 1504 (Dominican Republic), 1508 (Sudan), 1524 (El Salvador), 1527 (Peru) and 1529 (Philippines), 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 these Governments to transmit their observations as a matter of urgency.

10. 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. 1341 (Paraguay), 1483 (Costa Rica), 1505 (Barbados) and 1518 (United Kingdom).

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

11. As regards Case No. 1261 (United Kingdom), when the Committee last considered this case (259th Report, para. 14), it recalled once again that the unilateral action taken by the Government to deprive the public servants employed at the General Communications Headquarters/GCHQ) of their right to belong to a trade union was not in conformity with Convention No. 87.

On 14 June 1990 the Trades Union Congress (TUC) informed the ILO that the Government had subsequently dismissed all the trade unionists who were employed at GCHQ and who had insisted on retaining their trade union membership. After the TUC proposed to the Prime Minister to approach discussions constructively with a view to finding a solution, the Prime Minister apparently replied that the Government remained convinced that its actions had not contravened any of the Conventions ratified by the UK and she did not respond to the proposal to reopen discussions. The TUC adds that in December 1989 the Certification Officer refused to grant a certificate of independence to the Government Communications Staff Federation at GCHQ, the only organisation there which employees may join; the Federation is appealing against this refusal.

In a letter of 12 October 1990, the Government states that every opportunity was extended to the small group of staff who retained their union membership to accept the terms and conditions of employment that were introduced or, where practicable, to transfer to other employment in the civil service. The overwhelming majority of staff at GCHQ accepted the new conditions of service. Nearly all the remainder either accepted transfers to or opted for voluntary departure with generous compensation. In the end the last 13 unionised employees were dismissed by GCHQ, and they received different forms of compensation. As regards negotiations with the relevant trade unions, the Government states that discussions had been held, and in those discussions the unions had urged that a "no disruption agreement" would provide adequate safeguards. The Government had to reject the proposals as they did not provide sufficient guarantee. The unions later formally rejected any negotiations directed towards the possibility of concluding a "no strike agreement" at GCHQ. The Government recognises that the unions have subsequently indicated that they might change their position, but believes that the uninterrupted future operation of GCHQ, essential in the national interest, could not be guaranteed if agreements entered into by the unions representing the workers there could be repudiated at any time as a result of a change in position of the unions concerned. As regards the Government Communications Staff Federation (GCSF), the Government admits that the Certification Officer decided in December 1989 not to issue the GCSF with a certificate of independence, but the GCSF has appealed against this decision. It adds, however, that the TUC is wrong to imply that GCHQ staff are not properly represented. The Certification Officer stated in his ruling that GCSF operates "reasonably effectively and in much the same way as many other small trade unions"; over 50 per cent of staff have joined the GCSF. The Government adds that whatever the outcome of the appeal against the ruling, this could not in any way detract from the GCSF's standing as a listed trade union and cannot affect its handling of day-to-day business or its ability to represent its members.

The Committee takes note of the detailed information supplied by the Government but can only regret that the last 13 GCHQ employees who had refused to renounce their union memberships were dismissed. The Committee requests the Government to inform it of the outcome of the appeal lodged by the Government Communications Staff Federation to acquire formal "independent" status. Faced with this lack of progress regarding the right of workers to join organisations of their own choosing, the Committee again draws the Government's attention to the provisions of Convention No. 87, ratified by the United Kingdom.

12. As regards Case No. 1271 (Honduras) which concerns allegations of interference by the authorities in the dispute between the executive committees of the union the Professional College for the Advancement of Teaching in Honduras (COLPROSUMAH), the World Confederation of Organisations of the Teaching Profession (WCOTP) sent a communication on 29 May 1990 enclosing a copy of a letter jointly published by the two rival executives in which they both recognise that there had been government interference in the internal dispute between them. In a communication of 9 July 1990, the Government welcomes the satisfactory settlement of this dispute and points out that since this was a problem of an internal nature, it had always insisted that a solution had to be found through a vote which would decide the majority group to lead this Professional College. The Committee takes note of this information with interest.

13. As regards Case No. 1309 (Chile), at its May 1990 examination of this case (272nd Report, paras. 156-170), the Committee requested the Government to keep it informed of the outcome of the proceedings for the reinstatement of Mr. Angel Catalán, officer of the Workers' Union of the COPASIN Company. In a communication of 25 July 1990, the Government states that on 21 June 1990 the judge of the First Labour Court of San Miguel approved the agreement which had been reached between Mr. Catalán and the COPASIN Company, according to which this trade unionist would be reinstated in his previous post as from 1 July 1990 and would receive compensation for the period 10 July 1989 to 1 July 1990. The Committee takes note of the information supplied by the Government with satisfaction.

14. As regards Case No. 1369 (Honduras), the Committee had requested the Government to keep it informed of progress in the trial under way into the murder, in May 1986, of the trade union leader Crisóbal Pérez Díaz. In a communication of 2 July 1990, the Government states that the case is still under judicial investigation by the Third Criminal Court of the city of Comayagüela, but after the judge had heard several witnesses none could say who had committed the crime. Therefore, despite the diligent efforts of, and inquiries made by, the investigating magistrate, it has not been possible to establish the identity of those responsible for the murder of this trade unionist. The Committee takes note of this information and requests the Government to inform it of any developments in this matter.

15. As regards Case No. 1385 (New Zealand), the Committee last examined this case at its May 1989 meeting and requested the Government to keep it informed of any steps taken to modify the trade unions registration system as set up by the 1987 Labour Relations Act. In a communication of 29 May 1990, the Government states that it accepts the views of the New Zealand Employers' Federation and the Committee on Freedom of Association on this issue, but that being committed to the development of effective well-resourced unions, the registration process assists in these aims by reducing inter-union conflicts and confusion over representation rights. It maintains that it is possible for workers to form unions outside the Labour Relations Act and to negotiate with any employer who chooses to recognise them. The Government is also of the opinion that the 1,000 minimum membership requirement also assists in the development of an effective union movement and small unions can amalgamate with other unions if they wish to remain covered by the provisions of the Labour Relations Act. The Government also states that its position on these issues is unlikely to change in the near future and that the 1,000 minimum membership is an essential element in a policy to strengthen the union movement. The Committee notes this information. It regrets the Government's attitude on these issues and can only reiterate its previous conclusions and recommendations on this case.

16. As regards Cases Nos. 1408 and 1485 (Venezuela), in a communcation dated 10 October 1990 the Government indicates that, for Case No. 1408 concerning the granting of legal personality to the Autonomous Trade Union of Workers in the Central Bank of Venezuela, the First Administrative Court has still not decided the appeal brought by the union. As for Case No. 1485 concerning the request for cancellation of the registration of the Unitary Trade Union of Workers in Teaching which had been lodged by the National Institute for Co-operation in Education, the Government states that the Politico-Administrative Chamber of the Supreme Court of Justice has still not handed down its decision. The Committee takes note of this information and again requests the Government to keep it informed of the awaited decisions in both cases.

17. As regards Case No. 1417 (Brazil), when the Committee last examined this case at its May 1990 meeting (265th Report, paras. 283 to 300) it awaited additional information on the murder of three trade union leaders, Mauro Pires, Sebastiao Teixeira do Carmo and Francisco Alves Mendes. In a communication dated 26 October 1990, the Government states that as regards the death of Mauro Pires, the normal police investigation ended with the identification of the presumed authors of the crime and the trial has now been opened before the courts. As regards the murder of Mr. F.A. Mendes, it states that a joint action was carried out by the Provincial Government of Acre and the Federal and military police in an effort to clarify the facts and punish the guilty parties. Of the three presumed authors of the crime, two confessed and are under arrest; the third has fled and the authorities are trying to capture him. According to the Secretary of the Public Security Department of Acre, the defendants Cardy Alves Pereira and Darly Alves da Silva will be tried on 25 October 1990. The Committee takes note of this information and requests the Government to inform it of the situation regarding the case of the murder of Mr. Teixeira do Carmo.

18. As regards Case No. 1428 (India), when the Committee last examined this case at its February 1989 meeting (262nd Report, paras. 173 to 202) it requested the Government to supply precise information on the charges brought against the trade union leader Ashit Dutta and against eight plantation workers from the Panery district, as well as to supply copies of the corresponding judicial decisions. In a communication of 29 October 1990, the Government states that it has requested the Government of Assam to send copies of the judgements as and when these are available; it adds that the Committee's recommendations have been brought to the notice of that State Government which has subsequently issued the necessary instructions to avoid a repetition of management-backed acts of favouritism. The Committee takes note of this information and requests the Government to send it the text of the judgements when they are handed down.

19. As regards Case No. 1431 (Indonesia), last examined in depth by the Committee in May 1989 (265th Report, paras. 104-137), the Government supplied follow up information on the legislative issues which was noted with interest at the Committee's May 1990 meeting (272nd Report, para. 19). In two further communications dated 30 July and 24 August 1990, the Government supplies two important pieces of information: Presidential Decree No. 123 of 1963 banning strikes in many public enterprises has been formally repealed by Presidential Decree No. 27 of 18 June 1990; and public sector employees' organisations have been engaging in collective bargaining as evidenced by the recent signature of the 1990-1992 collective labour agreement between PT. KALTIM PRIMA COAL and PRIMA COAL'S employees' organisation, OP-KORPRI. The Committee notes these developments with interest and refers this information to the Committee of Experts on the Application of Conventions and Recommendations for examination in the context of Convention No. 98 which has been ratified by Indonesia.

20. As regards Cases Nos. 1461 and 1481 (Brazil), the Committee had requested the Government to inform it of the outcome of the investigations into the repression of public servants and employees of various state enterprises who had been on strike. In a communication dated 26 October 1990, the Government repeats the information supplied in its communication of 22 October 1989 (see 268th Report, para. 21) and adds that, in relation to the alleged acts of repression against workers in the National Iron and Steel Works of Volta Redonda, in November 1988, the police inquiries to establish the facts and identify the guilty parties are before the courts of Volta Redonda and Rio de Janeiro. The Committee takes note of this information and requests the Government to continue informing it of developments in these cases.

21. As regards Case No. 1469 (Netherlands), the Committee last examined this case at its May 1989 meeting and recommended the Government to take steps to amend the Act concerning the conditions of employment in the national insurance and subsidised sectors (WAGGS Act), in particular, sections 10 and 11, so that the workers and employers in these sectors can negotiate and conclude agreements. In a communication dated 8 June 1990, the Government states that a report on the WAGGS Act has been submitted to the Second Chamber of the Dutch Parliament which is dealing with the measures the Government intends to propose on the "ultimum remedium", i.e. those sections criticised by the Committee. The Government is seriously considering possible ways of amending the Act. Consultations on the various options it describes to amend the WAGGS Act will first be held with the employers' and workers' organisations concerned, and then advice will be sought from the Social and Economic Council, probably in Autumn 1990. After these steps, procedures for amending the Act can be started. The Government adds that it will send a copy of the report submitted to the Second Chamber and will keep the Committee informed of the further developments. The Committee takes note of this information and looks forward to receiving information on progress concerning the proposed amendments and repeals.

22. As regards Case No. 1471 (India), when the Committee last examined this case at its February 1990 meeting (270th Report, paras. 77 to 108) it requested the Government, as a matter of priority, to take steps to secure a full and fair inquiry into the circumstances of the dismissals of Captains Sharma and Blaggana; to review existing legal provisions relating to complaints of anti-union discrimination with a view to ensuring that they are "expeditious, inexpensive and wholly impartial"; to provide a copy of the decision in Captain Sharma's action in the High Court in New Delhi; and to adopt appropriate measures to prevent the occurrence of anti-union discrimination in Vayudoot. In a communication dated 29 October 1990, the Government states that Captain Sharma's case is still sub judice in the Delhi High Court and that it will send a copy of the court order once it is received. The Government adds that anti-union discrimination by management is listed as an unfair labour practice under the Industrial Disputes Act, 1947 and that penal provisions exist for this type of offence, thus redress of workers' grievances is ensured in an impartial and inexpensive manner. Finally, the Government states that the Committee's recommendations have been brought to the attention of the Ministry of Civil Aviation. The Committee takes note of this information and requests the Government to send it a copy of the above-mentioned court orders once they are handed down.

23. As regards Case No. 1473 (Morocco), at its November 1989 examination of this case, the Committee asked the Government to keep it informed of any measures adopted to ensure that the National Office of Drinking Water (ONAP) respected the right of workers freely to elect their representatives and to protect union leaders against acts of anti-union discrimination, namely dismissals, transfers or arbitrary suspensions. In a communication of 4 June 1990, the Moroccan Union of Labour (UMT) indicated that, despite the Committee's recommendations and the efforts made by the UMT with the government authorities, the ONAP has persisted with its anti-union policy and has arbitrarily transferred workers from their original workplaces. By a letter of 1 June 1990, the Government states that the representation of staff at ONAP is guaranteed by joint administrative committees made up of elected staff representatives and members of the ONAP management in accordance with the provisions of the Temporary Regulations, responsible for fixing conditions of employment, remuneration and promotions. In addition, it states that the elections of staff to these bodies always take place freely having respect for the regulations in force. As regards Mr. Ahmed Ouachi, Treasurer of the Workers' Federation of ONAP, who was dismissed, the Government states that the Disciplinary Council unreservedly held against him the charge of serious professional error and recommended his dismissal. It adds that the Disciplinary Council's actions were approved by the majority of the staff representatives belonging to the UMT who were members of the Council. The Committee takes note of this information and again asks the Government to send the text of the minutes and the decision of the Disciplinary Council concerning Mr. Ouachi.

24. As regards Case No. 1495 (Philippines), the Committee had reached definitive conclusions at its November 1989 meeting (see 268th Report, paras. 214-247) and noted certain information from the Government on the passage of two Bills aimed at counteracting the effects of Privatisation Proclamation No. 50 at its May 1990 meeting (see 272nd Report, para. 15). In communications of 20 February and 5 March 1990, the complainant, the Cebu Plaza Employees' Union/National Federation of Labour, alleged that the Government was not implementing the Committee's recommendation to revise Proclamation No. 50. In a letter dated 21 May 1990 the Office of the Speaker of the House of Representatives of the Congress of the Philippines informed the Committee that the complainant's request for implementation of the Committee's recommendation had been forwarded to the House Committee on Labor and Employment for preferential attention. On 4 June 1990 the Government informed the Committee of its continuing contact with the complainant and of its support for the two current Bills which seek to amend or repeal Proclamation No. 50. The Committee takes note of this information and requests the Government to inform it of the adoption of the Bills.

25. As regards Case No. 1498 (Ecuador), at its February 1990 examination of this case, the Committee requested the Government to keep it informed of developments in the situation of the five trade union leaders dismissed by the National Brewery Company. In an undated communication received on 29 May 1990, the Government states that by reason of the final judgement handed down on 4 August 1989 by the Conciliation and Arbitration Tribunal to reinstate all dismissed workers who at that date had not terminated their employment relationship with the company whether by mutual agreement or any other legal method, the employer, in a letter of 9 August 1989, expressed its wish not to reinstate the dismissed workers and its preference to pay out the corresponding compensation. It adds that execution of this judgement was replaced by the agreement of the parties through the signing of agreements terminating the individual labour contracts. The Government explains that among the signatories of these termination agreements are the five trade union leaders involved. The Committee takes note of the detailed observations supplied by the Government.

26. As regards Case No. 1509 (Brazil), when the Committee last examined it at its February 1990 meeting (270th Report, paras. 182 to 192) it asked the Government to keep it informed of the outcome of the inquiries into the murder of the trade union leader Valdicio Barbosa dos Santos which had occurred on 12 September 1989 in the city of Pedro Canario, State of Espirito Santo. In a communication of 26 October 1990, the Government states that the report of the police investigation has been handed over the magistrates. The Committee takes note of this information and requests the Government to send it more precise information on the outcome of the investigation and on the current status of this matter.

27. As regards Case No. 1521 (Turkey), the Committee reached definitive conclusions at its May 1990 meeting (see 273rd Report, paras. 19 to 40) and requested the Government to amend the current and proposed legislative provisions applying to staff in public enterprises and which restrict their trade union rights, their right to bargain collectively and the right to take strike action.

In a communication of 24 September 1990, the Government observes again that Convention No. 98 does not contain any provision concerning the right to strike. It adds that Turkish legislation neither rules out collective bargaining nor sets any ban on the right to organise in trade unions in services or activities where strikes or lock-outs are prohibited. It claims that the term "national conditions" used in Article 4 of Convention No. 98 is a clear reference to the limits of the measures to be taken. Concerning civil servants' and contract employees' rights to organise and to bargain collectively, the Government recalls that the national legislation draws a distinction between public servants considered as engaged in the administration of the State, including public enterprises, and those employed as "workers" (manual workers) who are not denied the rights to organise, to bargain collectively and to strike except within the limits imposed by sections 29 to 31 of Act No. 2822. As far as the "contract employees" are concerned, the Government recalls that, under the provisions of section 60 of the proposed Decree No. 399, the restrictions on their trade union membership or participation in union activities are not in force until Parliament honours it as an Act. The Government considers that the Committee's conclusion that contract employees will be denied trade union rights if Decree No. 399 is adopted is not substantiated by evidence.

The Committee would first reply to the Government's comments on the scope of Convention No. 98. It points out that the jurisprudence of the ILO supervisory bodies on strike action has not - either in general or in its recommendations on this particular case - based itself on any specific provision of this Convention. The Committee has arrived at its current stand on strikes through reference to the general principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, paras. 362, 363 and 364). In the present case, the Committee therefore repeats its request that the Government amend Act No. 2822 so as to narrow its ban on strike action to services and enterprises that are essential in the strict sense of the term, for example by deleting the reference to railway transport which the ILO supervisory bodies do not consider to be essential under this definition. Secondly, in reply to the Government's comments on the phrase "national conditions" in Article 4 of Convention No. 98, the Committee refers to the 1949 Record of Proceedings of the International Labour Conference, which records, during the adoption of the Convention, that this Article was drafted "in terms designed to take account of the widely divergent conditions in various countries", and yet at the same time it was clearly the intention of the Conference that "the object of this Article should be to lay down the obligation to encourage the progressive development of collective bargaining, having regard to the actual conditions of the country in question". Thirdly, as regards the Government's arguments that all its "civil servants" are engaged in the administration of the state and that its "contract employees" are not yet denied trade union rights because the Decree in question has not yet been promulgated, the Committee recalls that it has not felt that it is prevented from expressing its opinion on the merits of an allegation just because the draft legislation in question has not been passed into law (see Digest, para. 30). In addition, it emphasises that no matter what extra benefits "contract workers" might be offered under the proposed legislation, they should not, under the principles on freedom of association, be denied the right to form and join organisations of their own choosing. Likewise, it stresses that the wording of Article 6 of Convention No. 98 has always been regarded narrowly by the ILO supervisory bodies so that only a limited number of State employees can be excluded from the right to bargain collectively guaranteed by the Convention (see General Survey on Freedom of Association and Collective Bargaining of the Committee of Experts on the Application of Conventions and Recommendations, 1983, para. 255). The Committee accordingly repeats its request to the Government to amend the existing and proposed legislation so as to ensure that staff in public enterprises can enjoy the rights set out in Convention No. 98, ratified by Turkey. It draws this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

28. Finally, as regards Cases Nos. 1054 and 1388 (Morocco), 1168 (El Salvador), 1189 (Kenya), 1396 (Haiti), 1467 (United States), 1468 (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.