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 20, 21 and 27 February 1992, under the chairmanship of Mr. Robert Ago, former Chairman of the Governing Body.

2. The members of the Committee of Panamanian and Australian nationalities were not present during the examination of the cases relating to Panama (Cases Nos. 1531, 1569 and 1580) and Australia (Case No. 1559).

3. The Committee is currently seized of 90 cases, in which complaints have been submitted to the Governments concerned for observations. At its present meeting it examined 29 cases in substance, reaching definitive conclusions in 17 cases and interim conclusions in 12 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 Canada/British Columbia, Manitoba, New Brunswick, Nova Scotia and Newfoundland (Cases Nos. 1603, 1604, 1605, 1606, 1607, 1616 and 1624), Peru (Cases Nos. 1609 and 1614), Philippines (Case No. 1610), Venezuela (Case No. 1611), Spain (Case No. 1613), Ecuador (Case No. 1617), Colombia (Case No. 1620), Sri Lanka (Case No. 1621), Fiji (Case No. 1622) and Bulgaria (Case No. 1623), 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.

Subsequent adjournments

Observations requested from the Governments

5. The Committee is still awaiting observations or information from the Governments concerned in the cases relating to Colombia (Cases Nos. 1434/1477 and 1562), El Salvador (Cases Nos. 1441/1494), India (Cases Nos. 1514 and 1591), Peru (Case No. 1527), Greece (Case No. 1584), Guatemala (Cases Nos. 1588 and 1595) and Canada/Quebec (Case No. 1601). The Government informed the Committee that it would send its observations as soon as possible concerning Cases Nos. 1444 and 1572 (Philippines). The Governments have sent partial information on Case No. 1541 (Peru), and Case No. 1549 (Dominican Republic). As regards Case No. 1523 (United States), the complainant organisation announced in a communication of 6 February 1992 that it would send complementary information. Concerning Case No. 1561 (Spain), the Government indicated that the judgement, a copy of which had been requested by the Committee, has still not been issued; the Government also requested an adjournment as regards Case No. 1602 since the complainant has provided further information. The Committee adjourns all these cases and asks the Governments of these countries to send the information or observations requested.

Observations requested from the Governments and the complainants

6. The Committee is still awaiting observations from the Governments and complainants concerning Cases Nos. 1512/1539 (Guatemala), 1517 (India) and 1554 (Honduras).

Other adjournments

7. The Committee decided to transmit the observations of the Government of Argentina on Case No. 1551 to the complainant organisation since, according to the Government, the allegations are not sufficiently detailed. The Committee also decided to adjourn its examination of Case No. 1573 (Paraguay) and requests more detailed information from the Government and the complainant organisation.

8. The Committee intends to examine the substance of Cases Nos. 1478/1484 (Peru), 1479 (India), 1560/1567 (Argentina), 1590 (Lesotho), 1596 (Uruguay), 1612 (Venezuela), 1615 (Philippines) and 1618 and 1619 (United Kingdom) at its next meeting since it has only just received these Governments' observations.

9. Concerning Case No. 1575 (Zambia), in two communications dated 14 November 1991 and 24 January 1992, the Government states that a thorough review of the Industrial Relations Act 1990 is being carried out through tripartite consultative meetings which will result in a number of amendments to this Act and that developments in this connection will be communicated. The Committee, therefore, adjourns its examination of this case awaiting the information announced by the Government.

10. As regards Case No. 1587 (Canada/British Columbia), the World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint of violation of freedom of association in June 1991, on behalf of the British Columbia Teachers' Federation (BCTF) and the Canadian Teachers' Federation (CTF). On 16 January 1992, the Government of Canada transmitted a communication of the Government of British Columbia, whereby the latter advised that the newly elected provincial Government was committed to repeal the legislation which had given rise to the complaint and had taken various interim measures to amend the impact of the said legislation. In a communication dated 28 January 1992, the CTF advised that the BCTF requested the Committee not to proceed with the complaint at this time and to suspend its examination of the case. The Committee therefore suspends its examination of this case pending further information from the complainants and the Government.

11. As regards Case No. 1600 (the Czech and Slovak Federal Republic), the World Federation of Trade Unions (WFTU), the Trade Union Association of Bohemia, Moravia and Slovakia and the United Trade Union of Private Sector Employees (UTUPSE), in communications dated 26 and 27 September and 13 October 1991, presented allegations that the WFTU had been unjustly expelled from the Czech and Slovak territory by an administrative decision of 21 August 1991 and that its right of appeal risked not being respected. The WFTU and the UTUPSE supplied further information in letters of 16 and 29 January 1992 to the effect that the WFTU's appeal had been rejected on 23 December 1991, and that it was given 12 months to transfer its headquarters to another State. The Government, in a communication of 24 January 1992, stated that after the rejection of the WFTU's appeal, that organisation asked the Attorney General to review the legality of the administrative procedure undertaken. The Government indicates that since an inquiry is still being held, it will forward its observations once these internal proceedings are completed.

URGENT APPEALS

12. As regards Cases Nos. 1527 and 1541 (Peru), 1538 (Honduras), 1557 (United States), 1589 (Morocco) and 1599 (Gabon), the Committee observes that, despite the time which has elapsed since the presentation of these complaints, the Governments concerned 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 its 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 or information 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.

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; 1582 and 1583 (Turkey), 1534 (Pakistan), 1546 (Paraguay) and 1568 (Honduras).

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

14. As regards Cases Nos. 1408, 1485 and 1501 (Venezuela), in its communication of 20 January 1992, the Government indicates that:

- in Case No. 1408, which dealt with the granting of legal personality to the Venezuela Central Bank Workers' Autonomous Union, the First Chamber of Administrative Litigation held that the motion to quash presented by this union had lapsed;

- in Case No. 1485, the Supreme Court of Justice, Political/Administrative Division, on 29 November 1990, rejected as non-admissible, the motion to quash presented by the National Institute of Educational Cooperation (INCE) against Resolution No. 7114 of 12 February 1988, which confirmed the inscription of the United Education Workers' Trade Union (STUTDI) on the Trade Unions' Registry; in a communication of 7 January 1992, the STUTDI confirms this Supreme Court decision in its favour;

- concerning the motion to quash presented against the dismissal of four leaders of the National Federation of the International Bank Workers (FETRABIN), Case No. 1501, the Labour Court Judge of the First Instance, Federal District and Miranda State, ordered that the effects of the administrative order be suspended, and that the dismissed trade union leaders be reinstated; an appeal against this decision was launched before the Superior Court and is presently pending before the Review Chamber of the Supreme Court (Civil, Commercial and Labour Division), where an issue of jurisdiction has still not been decided. The Government points out that the trade unionists concerned have abandoned their union actions and receive social benefits; it adds that the jurisdiction conflict before the Supreme Court concerns only the administrative doctrine according to which recourse against administrative acts must be heard by the First Chamber of Administrative Litigation, and not by the regular jurisdiction. The Committee takes note of the detailed reply provided by the Government.

15. As regards Case No. 1413 (Bahrain), the Committee last examined it at its meeting of May 1990 and requested the Government to keep it informed of any developments concerning the release of Mr. Ibrahim Al Kassab, a trade union leader who had been arrested. In a communication of 9 January 1992, the Government states that this trade unionist was amnestied on 7 March 1991. The Committee takes note of this information with interest.

16. As regards Case No. 1417 (Brazil), the Committee had requested the Government to keep it informed of developments concerning the murder of trade union leader Sebastiao Teixeira do Carmo. In a communication of 5 February 1992, the Government indicates that it has been unable to obtain any information, in spite of all efforts made to locate this trade unionist. The Government adds that no effort will be spared to collect information on his personal and professional activities and on the circumstances of his death, and that it will not fail to transmit all available information in this respect. The Committee takes note of this information.

17. The Committee examined Case No. 1419 (Panama) at its May 1990 meeting (272nd Report, paras. 197-219) and requested the Government to keep it informed of the possible repeal of Decree No. 13 of 16 May 1989, under which the Government may oblige certain "public utilities" to remain operational without interruption, under pain of sanctions. In a communication of 6 January 1992, the Minister of Labour and Social Welfare transmitted a copy of a memorandum, dated 22 October 1991, addressed to the Minister of Trade and Industry for his recommendations on the cancellation of said Decree. The Committee takes note of this communication and reiterates once again its request that the Government repeal as soon as possible Executive Decree No. 13, the provisions of which violate the rights of employers' organisations.

18. As regards Case No. 1511 (Australia), which was last examined in substance at the Committee's February 1991 meeting (277th Report, paras. 151-246), the Committee asked for information on the Government's endeavours to persuade the airline involved not to enforce the damages awarded against the Australian Federation of Air Pilots and six of its officers by the Victorian Supreme Court, on the Federation's appeal against that decision, and on the outcome of proceedings initiated by the airlines under section 118 of the Industrial Relations Act to prevent the Federation from representing the professional interests of the pilots they employed. In a communication of 17 October 1991, the Government states that there have been no developments regarding the enforcement of the damages award or regarding the Federation's appeal, for which no hearing date has been set yet. The hearings in the section 118 proceedings were to commence on 18 and 21 November and 11 and 13 December 1991. The Government points out that, in a related development, the Industrial Relations Commission rejected objections from the pilots' federation and allowed the Australian Transport Officers' Federation to represent the pilots in an appeal affecting their professional interests. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the appeal and the section 118 proceedings.

19. As regards Case No. 1528 (Germany), last examined at the Committee's February 1991 meeting (277th Report, paras. 247-291), the Committee asked to be kept informed of the outcome of the proceedings under way against the Chairman of the Hesse Educational and Scientific Trade Union (GEW), Mr. Müller. In a communication of 26 November 1991 the Government states that he was fined DM500 with account being taken of the fact that, at the time he instigated industrial action, he was on leave of absence from the education service. The Government adds the following comments on the Committee's definitive conclusions in this case: (1) it presumes that the Committee is yet to make a recommendation on the Government's argument that the strike by non-permanent salaried teachers was not lawful because a collective agreement regulating teachers' working time was still in force at the time of the strike; (2) it cannot accede to the legal opinion expressed by the Committee that the teachers with civil service status who took part in the strike do not fall within the groups of workers which might be excluded from the right to strike; (3) it argues that neither the ILO Constitution nor the Declaration of Philadelphia imply that this right to strike should be worked out in detail in all member States and standardised; (4) the Government cannot influence the case law of the Federal Constitutional Court, which has refused civil servants the right to strike; thus, it could only act on the Committee's recommendation by removing the civil servant status of the teachers, which would be resisted by most of those concerned, or by amending the relevant constitutional provisions, which the legislature would not accept; (5) on the Committee's request that the sanctions on striking teachers be reviewed, it states that there were in fact four types of sanction ("cautions", "censure in writing", "reprimands" and "warnings") and that there are no grounds formally to revoke the measures taken. It points out that the first three types of sanctions were placed in the personal files of the teachers concerned, where they may stay for a period of up to three years, which will lapse in spring 1992; as the Committee did not comment on the unlawfulness of the strike by non-permanent salaried teachers - who received "warnings" - the Government does not comment on the lifting of this type of sanction. The Committee can only regret that the Government maintains its position on the question of the right to strike of civil servant teachers. As for the Government's comments on the unlawfulness of the strike action carried out by non-permanent salaried teachers, the Committee would recall that the complainants in this case specifically alleged problems with civil servant teachers (beamtete Lehrer) (277th Report, paras. 249 and 261) and the Committee accordingly examined the facts in this context. As to the core of its conclusions, the Committee recalls that teachers - whatever their particular status under national law - should be allowed to exercise the right to strike. It hopes that the Government will reconsider its position in this connection.

20. As regards Case No. 1544 (Ecuador), the Government indicated in May 1991 that Decree No. 1535 remained without effect and the Committee requested it to indicate whether Decree No. 1589, which prohibited the same person to participate more than once in the International Labour Conference as Employer's delegate or technical adviser, had been repealed. In its communication of 22 January 1992, the Government confirms that the Court of Constitutional Guarantees, by a resolution dated 2 May 1991, has suspended the effect of Decree No. 1535 but that this resolution does not mention Decree No. 1589, since it was intended to keep it in force. The Committee takes note of this information and urges the Government to take all necessary measures to repeal Decree No. 1589, the provisions of which violate the right of employers' organisations freely to elect their representatives (Articles 3 and 5 of Convention No. 87, ratified by Ecuador).

21. Finally, as regards Cases Nos. 1271 (Honduras), 1341, 1435, 1446 and 1519 (Paraguay), 1385 (New Zealand), 1426, 1495 and 1570 (Philippines), 1428, 1468, 1471 and 1550 (India), 1502 (Peru), 1505 (Barbados), 1520 (Haiti), 1526 (Canada/Quebec), 1544 (Ecuador), 1545 (Poland), 1555 (Colombia), 1563 (Iceland), 1565 (Greece), 1571 (Romania), 1577 (Turkey) and 1581 (Thailand), the Committee again requests these Governments to keep it informed of developments in the various matters. The Committee hopes that these Governments will communicate the information requested at an early date.