Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at 117th Session (November 1991), met at the International Labour Office, Geneva, on 4, 5 and 10 November 1993, under the Chairmanship of Mr. Roberto Ago, former Chairman of the Governing Body.

2. The members of the Committee of American, Argentinian, Chilean and German nationalities were not present during the examination of the cases relating to the United States (No. 1557), Argentina (Nos. 1653, 1660 and 1662), Chile (No. 1710) and Germany (No. 1692), respectively.

3. The Committee is currently seized of 113 cases, in which complaints have been submitted to the governments concerned for observations. At its present meeting, it examined 32 cases on the merits, reaching definitive conclusions in 23 cases and interim conclusions in nine 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: Philippines (No. 1718), Nicaragua (No. 1719), Brazil (No. 1720), Colombia (No. 1721), Canada (Nos. 1722, 1733, 1735, 1737 and 1738), Argentina (Nos. 1723, 1728 and 1736), Morocco (No. 1724), Pakistan (No. 1726), Turkey (No. 1727), United Kingdom (No. 1730), Peru (No. 1731), Dominican Republic (No. 1732), Guatemala (No. 1734), and Venezuela (No. 1739) because it is awaiting information and observations from the governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee. Observations requested from governments

5. The Committee is still awaiting observations or information from the governments concerned in the cases relating to: Guatemala (No. 1512/1539), Malaysia (No. 1552), Spain (No. 1561), Venezuela (No. 1612), Colombia (Nos. 1620 and 1625), Malta (No. 1630), Côte d'Ivoire (No. 1647), Haiti (Nos. 1682, 1711 and 1716), Guinea (No. 1703), Lebanon (No. 1704), Morocco (No. 1709) and Canada (No. 1715). Concerning Denmark (Case No. 1641), the Committee requests the Government to furnish its observations on the latest information communicated by the complainant the day before the Committee met. As regards Argentina (Case No. 1684), the Government announced that it was going to send its observations soon.

Observations requested from complainants and/or governments

6. With respect to Cases Nos. 1538 and 1544 (Honduras), the Committee observes that, in spite of the time which has elapsed since its first request, it has not yet received the observations requested from the complainants. As for Case No. 1573 (Paraguay), the complainant indicates that it does not have any information to communicate. As it had stated at its May 1993 meeting, the Committee is compelled to consider these cases as closed. In Case No. 1671 (Morocco) the Committee is awaiting comments and observations from both the complainant and the government. The Committee requests the complainant and the government concerned to transmit, without delay, the observations and information requested.

Partial information received from governments

7. In Cases Nos. 1434/1477, 1686 and 1702 (Colombia), 1527, 1541 and 1598 (Peru), 1649 (Nicaragua) and 1685 (Venezuela), the governments have sent certain information on the allegations made. The Committee requests them to send the remaining information without delay so that it can examine these cases in full knowledge of the facts.

Observations received from governments

8. The Committee intends to examine the substance of Cases Nos. 1596 (Uruguay), 1609 (Peru), 1623 (Bulgaria), 1640 and 1646 (Morocco), 1651 (India), 1652 (China), 1678 and 1695 (Costa Rica), 1688 (Sudan), 1696 (Pakistan) and 1697 (Turkey), 1698 (New Zealand), 1725 (Denmark) and 1729 (Ecuador) at its next meeting.

9. The Committee has been informed that a tentative working paper addressed to its members for the examination of a pending case had been published in part in a newspaper of the country in question as well as, later on, the procedural decision taken in this case. The Committee deeply deplores this incident and insists to recall that all its documents are strictly confidential until its report is discussed by the Governing Body. The Committee further emphasizes that it has not yet discussed the document the extracts of which were published in the press and, therefore, that these do not reflect its opinion on the issues raised in that case.

Complaint presented under article 26 of the ILO Constitution

10. With respect to Case No. 1594 (Côte d'Ivoire) which concerns a complaint made by Worker delegates to the 79th (1992) Session of the International Labour Conference under article 26 of the ILO Constitution, as well as a complaint presented by the World Confederation of Labour, the Committee had urged the Government at its May 1993 meeting (see 289th Report, paras. 1-29) to submit as soon as possible detailed replies to the different aspects of this complaint and it had stated that, in the light of the factual and legal information at its disposal, it would re-examine the advisability of taking further action on the complaint presented under article 26 of the ILO Constitution by establishing a Commission of Inquiry. Since then the complainants have supplied additional information in communications of 17 May, 12 August and 28 September 1993. The Government, for its part, has furnished its observations in communications of 21 September and 5 October 1993. The Committee considers, in view of the importance of this case, and of the seriousness of the issues raised, it would be highly appropriate that a representative of the Director-General undertook a direct contacts mission to the country and reported to the Committee. It therefore requests the Government to accept such a mission. The Committee will examine the matter of the possible establishment of a Commission of Inquiry during its next examination of the case, taking account notably, of the information that could be gathered by the direct contacts mission.

Request for withdrawal of complaint

11. In a case relating to Egypt (Case No. 1701), the Committee examined a request for withdrawal of the complaint signed by the president of the Egyptian Engineers' Trade Union and dated 14 September 1993. In his communication, the president of this trade union explains that the signatory of the complaint, who is general secretary of the union, filed suit challenging the constitutionality of the Act concerning democratic guarantees for occupational associations, which is the subject of the complaint. The administrative court dismissed the suit. In these conditions, the president of the complainant organization requests that the complaint be withdrawn. The Committee considers that the reasons given for the withdrawal of the complaint do not allow it to renounce examining the substance of the case. It therefore requests the Government to furnish its observations on the substance of the case.

URGENT APPEALS

12. As regards Cases Nos. 1568 (Honduras), 1572 and 1615 (Philippines), 1595 (Guatemala), 1638 (Malawi), 1656 (Paraguay), 1679 (Argentina) and 1687, 1691, 1712 and 1714 (Morocco), the Committee observes, that despite the time which has elapsed since the presentation of these complaints or since their last examination, it has not received the Governments' observations. The Committee draws the attention of all 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 may present a report on the substance of these cases, even if the observations or information requested from the Governments have not been received in due time. The Committee accordingly requests the Governments to transmit their observations or information 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: Greece (Case No. 1632), Peru (Cases Nos. 1648, 1650 and 1706), Germany (Case No. 1692) and Cameroon (Case No. 1699).

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

14. As regards Case. No. 1428 (India), last examined by the Committee at its February 1989 meeting (see 262nd Report, paras. 173 to 202), the Committee requested the Government to send the text of the judgments concerning the case of Mr. Ashit Dutta and that of eight plantation workers which were pending before the courts. In a communication of 5 August 1993, the Government transmits a copy of the judgment of the Chief Judicial Magistrate of Kokrajher which finds Mr. Ashit Dutta, trade union leader who was charged with assaulting a police officer on 2 December 1987, not guilty. As regards the case of the eight tea plantation workers who were charged with assaulting an office bearer from a rival union, the Government states that the matter is in the court of the Chief Judicial Magistrate and that the Government of the State of Assam is taking expeditious steps to dispose of the case. In a subsequent communication of 14 October 1993, the Government states that the eight workers in question have been acquitted. The Committee notes with interest the outcome of these cases.

15. As regards Case No. 1511 (Australia), at its meeting in February 1991, the Committee asked the Government to keep it informed of the outcome of the appeal lodged by the Australian Federation of Air Pilots (AFAP) against a decision of the Victoria Supreme Court and of the proceedings under section 118A of the Industrial Relations Act, 1988 (see 277th Report, para. 246). In a communication dated 13 September 1993, the Government states that the airlines have not waived their right to enforce the award of damages against the AFAP. The Government has therefore obtained legal advice on what further action it might take to persuade the airlines not to enforce these damages. There have been no developments in relation to the AFAP's appeal since the AFAP, as the appellant in this case, has not yet sought to have the matter brought on for hearing. The matter in the section 118A proceedings was substantially heard during April and May 1992 but is not yet finalized. This delay is due to several developments which are discussed in four decisions handed down by the Industrial Relations Commission on 15 June, 23 September and 15 December 1992 and 2 February 1993. The Government supplies copies of these four decisions. The Committee takes note of this information and requests the Government to continue to keep it informed of progress in the AFAP's appeal and the section 118A proceedings.

16. As regards Case No. 1517 (India), the Committee last examined it at its November 1992 meeting (see 284th Report, paras. 443 to 458) and requested the Government to keep it informed of progress towards the adoption of legislative provisions which would lay down objective procedures for determining the representative status of trade unions and of the outcome of the appeal lodged by the management of Indian Drugs and Pharmaceuticals Ltd. concerning the reimbursement of wages withheld because of a one-day strike. In a communication of 7 July 1993, the Government states that the adoption of legislative provisions for determining the representativeness of trade unions is under consideration. In a communication of 14 October 1993, the Government states that the appeal by the management of Indian Drugs and Pharmaeutical Ltd. is still pending before the High Court of Calcutta. The Committee takes note of this information and asks the Government to keep it informed on any progress registered as regards the adoption of the said legislation and on the outcome of the appeal.

17. As regards Case No. 1549 (Dominican Republic), last examined by the Committee at its March 1993 meeting (see 286th Report, paras. 168 to 175), the Committee requested the Government to undertake judicial investigations into all the acts of violence which took place as part of the collective dispute between the Dominican Electricity Corporation Workers' Trade Union (SITRACODE) and the Corporation, so as to determine responsibilities and punish the guilty parties. In a communication of 14 July 1993, the Government states that as a result of street protests which took place during the labour dispute, physical assaults did take place but did not in any instance result in serious injuries, although this is in no way an acceptance of or justification for these acts of violence. The Government adds that during these events (in November 1990 and in January and March 1991), there were no judicial investigations but that investigations were undertaken by the State Secretariat for Labour, which tried to resolve the dispute through the payment of labour benefits to the workers who were dismissed by the Dominican Electricity Corporation. Efforts were made to obtain the reinstatement of some trade union officials to their posts. However, the Corporation concerned has persisted in its attitude of offering to pay labour benefits to all the trade union officials. The Government specifies that these events occurred under the regime of the old Labour Code which did not make provision for the reinstatement of trade union officials in case of unjustified dismissal. The Committee takes note of this information.

18. As regards Case No. 1556 (Iraq), the Committee requested the Government at its November 1991 meeting (see 279th Report) to take the necessary measures to release the detained Kuwaiti trade unionists and to restore confiscated property to the employers' and workers' organizations concerned and where the identification of property was not possible, to supply just compensation. In a communication of 27 September 1993, Government affirms that no Kuwaiti trade unionist or non-trade unionist has been detained in Iraq. It adds that it is proof that a number of those whose names figure on the list of missing or detained persons have participated either at the 78th, 79th and 80th Sessions of the International Labour Conference or at other Arab or international conferences or meetings. In particular, Mr. Abdallah Al Dougajem and Mr. Ali Abdel Rahman Al Kandari participated respectively at one or the other of the three Sessions of the Conference, as well as Mr. Sabet Ibrahim Al Haroun, Mr. Mossalam Al Barrak, Mr. Mohamed Al Hoyjaylan, Mr. Hossein Saker Abdel Latif, Mr. Ali Hossein Al Yola and Mr. Ahmed Said Asbahi who particpated in the work of the Central Committee of the International Confederation of Arab Workers or the Arab Union of Municipalities or the Arab Union of Banks or the Arab Labour Conference. Moreoever, the Government maintains that the Iraqi authorities have not confiscated any of the property of the Kuwaiti employers' or workers' organizations and that if some property was really lost due to the circumstances of the war, then the matter is dealt with through the mechanism of the compensation fund set up for this purpose under the auspices of the United Nations on the basis of evidence provided. The Government therefore requests the Committee to close this case which the Kuwaiti regime is exploiting in order, amongst other things, to prolong the unjust enconomic blockade against Iraq. The Committee takes note of these statements. It observes however that the Government provides information on only a third of the trade unionists mentioned by the complainants and that it merely indicates that the issue of trade union property is dealt with through the mechanism of the compensation fund set up for this purpose under the auspices of the United Nations. The Committee can only request the Government once again to continue to provide it with detailed information on the condition of the other imprisoned or missing trade unionists who have been named by the complainants and on the restoration of property of Kuwaiti trade unions and employers' organisations, notably within the framework of the compensation fund set up for this purpose under the auspices of the United Nations.

19. As regards Case No. 1569 (Panama), at its meeting in March 1992 (see 281st Report, paras. 118 to 146), the Committee requested the Government to continue taking measures with a view to reinstating the trade union leaders and members who were dismissed by the Water and Electricity Board (IRHE) and the National Telecommunications Board (INTEL) following a strike of December 1990, and to continue to keep it informed of the outcome of the appeals introduced by the workers before the Third Chamber of the Supreme Court. In a communication of 27 May 1993, the Government transmits a note from this instance which contains the list of dismissed employees who had introduced appeals. It further specifies that proceedings were still taking place for some of the workers, whereas proceedings were about to finish for the others. In a communication of 16 August 1993 the Government sends a text of six judgments of the High Court which were handed down in June and July 1993, according to which the dismissals in question were not illegal. In this respect, the Committee regrets that the parties concerned have not succeeded in reaching an agreement and recalls once again that, during its examination of these dismissals at its February 1992 meeting, it considered that "the mass dismissal of trade union leaders and workers in the public sector was a serious violation of Convention No. 98" (see 281st Report, para. 143).

20. As regards Case No. 1578 (Venezuela), examined by the Committee at its meetings in February 1992 and February 1993 (see 281st Report, paras. 384 to 398 and 286th Report, para. 9), the Government states in a communication of 5 August 1993 that the case concerning the trade union rights of distributors, delivery personnel and sellers of beer is pending before the politico-administrative Chamber of the Supreme Court of Justice, following the appeal introduced by the General Confederation of Workers to declare null and void the decree of the Ministry of Labour. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the case.

21. As regards Case No. 1581 (Thailand), the Committee requested the Government, at its November 1991 and February 1993 meetings, to keep it informed of developments relating to the amendment or repeal of the State Enterprise Labour Relations Act and to the restitution of assets of the trade unions which had been dissolved. In a communication of 27 September 1993, the Government states that the revised State Enterprise Labour Relations Act, drafted by the Department of Labour Protection and Welfare and examined by the Ministry of Interior and the National Advisory Council for Labour Development, was approved by the Cabinet and is now under consideration by the Office of the Juridical Council. After approval by the latter, the draft will be re-submitted for approval to the Cabinet and then will be submitted to Parliament for adoption. The Government attaches to its communication a summary of the main draft amendments to the Act. The Committee takes note of this information. It draws the Government's attention to the fact that the technical assistance of the ILO is at its disposal to examine the conformity of this revised draft with the principles of freedom of association and requests the Government to continue to keep it informed on any progress reached regarding the adoption of the revised State Enterprise Labour Relations Act. As regards the restitution of assets of the trade unions which had been dissolved under the said Act, the Committee regrets that the Government has not provided any information. Therefore, it would like to insist once again that the Government provide information in this respect as soon as possible.

22. As regards Case No. 1586 (Nicaragua), the Committee last examined it at its May 1993 meeting (see 287th Report, paras. 133-145) and requested the Government to undertake judicial investigations into the acts of violence committed by the police against striking workers and to institute criminal judicial investigations with a view to shedding light on the acts of violence which took place during the collective dispute at ENABAS. In a communication of 19 October 1993, the Government confirms that the said acts by the police have led to investigations. The Committee expresses the hope that these investigations will result in the punishment of those found guilty.

23. In Case No. 1588 (Guatemala), the Committee considered at its November 1992 that civilian staff working at the Army Bank should enjoy the right to establish and join trade union organizations. It had noted that the matter was before the courts and had asked the competent authorities to take this criterion into account (see 284th Report, para. 737). In a communication of 10 May 1993, the Government states that the case is pending before the Supreme Court following an appeal introduced by the Army Bank. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the proceedings.

24. As regards Case No. 1589 (Morocco), at its meetings in May 1992 and May 1993 (see 283rd Report, paras. 296 to 319 and 287th Report, paras. 146 to 158), the Committee requested the Government (i) to undertake an inquiry to determine the real reasons for the dismissals of trade unionists and members of the union executive committee who were workers at the Moulitex factory; (ii) to take the necessary measures to implement the agreements providing for the reinstatement of the persons suspended or dismissed in the Moulitex and Sicob factories as well as to keep it informed of the outcome of the legal proceedings instituted by the seven dismissed workers who wished to bring their cases before a court; (iii) to provide information on legislative or other measures taken to ensure the application of Article 1 of Convention No. 98; and (iv) to open an inquiry so as to determine the nature of and justification for the several incidents of violent intervention by the police to disperse the workers from the Moulitex and Sicob factories who were occupying the premises. In a communication of 11 May 1993, the Government states once again (see 283rd Report, para. 308) as regards the inquiry undertaken to determine the circumstances in which several workers of Moulitex were dismissed, that in the beginning of March 1991 a fire broke out in the electrical installations of the factory. This led the management to dismiss a number of workers whom it accused of committing acts of sabotage in the light of the inquiry that it undertook in this matter. The Governments adds that most of the dismissed workers have brought an appeal before the competent court and that it will transmit the judgments handed down in this respect. As regards the measures taken to implement the agreement providing for the reinstatement of several workers of the Moulitex firm, the Government states that an initial oral agreement had been reached providing for the reinstatement of ten workers out of the 20 who were dismissed and subsequent examination of the cases of the ten other workers. This agreement was not implemented because all the workers concerned presented themselves before the firm and insisted that they resume work. The workers formed groups on the road outside the factory and disturbed the right to work of others. As a result, the employer decided to close the factory and dismiss 43 workers. After the intervention of the labour inspectorate, a second agreement was reached under which all the dismissed workers, with the exception of 41 amongst them, were reinstated and statutory benefits were paid to the dismissed workers. With respect to the inquiry regarding the police intervention in this dispute, the Government states that according to the information transmitted by the competent services, around 100 striking workers gathered on the road in front of the factory, thus disturbing freedom of movement and the right to work. The police intervened to clear the road and ensure the right to work. This took place peacefully and no worker was injured or arrested, contrary to the allegations of the complainant, the Democratic Confederation of Labour (CDT). Finally, as regards the protection of workers against acts of anti-union discrimination, the Government states once again that the draft laws which have been drawn up within the framework of the revision of the Labour Code contain provisions that prohibit acts of discrimination which are motivated by trade union affiliation or activities of workers, under penalty of fines or imprisonment. While taking note of this information, the Committee reiterates its recommendations and requests the Government to keep it informed of any new information pertaining to this case.

25. As regards Case No. 1591 (India), examined in November 1992 (see 284th Report, paras. 943 to 961), the Committee requested the complainant to provide detailed information on the allegations of unfair practices, which were allegedly taken against supervisory and managerial staff, so that it could examine this aspect of the case. The complainant has not replied to this request for information. The Committee also asked the Government to keep it informed of the progress of the Bill (entitled the Participation of Workers in Management Bill and which has been before Parliament since 1990) which purports, according to the complainants, to rectify the situation of supervisory and managerial staff who cannot appeal to the labour courts and administrative courts due to the fact that they are excluded from coverage under the Industrial Disputes Act, 1947. In a communication of 7 July 1993, the Government indicates that the Bill in question is not intended to provide a legislative framework for collective bargaining of supervisory and managerial staff, contrary to the statements made by the complainants. The Bill, however, provides 12 per cent representation to supervisory and managerial staff on the Board of Management of every body corporate owning an industrial establishment or establishments. The Government therefore considers that this Bill is not relevant to the case but adds that it has been introduced in Parliament and that a number of notices proposing amendments are currently being examined by the Government. The Committee takes note of this information and requests the Government to continue to keep it informed of any developments in this respect.

26. As regards Case No. 1632 (Greece), the Committee requested the Government, at its February 1993 meeting, to indicate whether Act No. 2025 which had frozen wage negotiations for workers in the public sector had lapsed on 31 December 1992 as provided for by the Act, and to indicate whether the right to bargain collectively in this sector had been restored. It had also asked the Government to keep it informed of any action taken to guarantee, both in law and in practice, that workers' organizations are involved in defining the minimum services to be maintained in the event of a strike in services deemed as essential in Greek legislation. In a communication of 11 May 1993, the Government states that Act No. 2025 did lapse on 31 December 1992 as provided for by its text. As regards the involvement of workers' organizations in defining minimum services in the event of a strike, the Government states that under Act No. 1264/92, workers' organizations are informed by the employer of the minimum services to be maintained and that if they do not agree, they have the right to appeal to the committee set up for this purpose by Act No. 1264/92. The Committee takes note of this information. It can only reiterate its previous conclusions with respect to the need to guarantee that workers' organizations are involved, with employers and the public authorities, in defining the minimum services to be maintained in the event of a strike in services deemed as essential in Greek legislation. The Committee once again draws the attention of the Committee of Experts to this aspect of the case.

27. As regards Case No. 1655 (Nicaragua), the Committee examined it at its February 1993 meeting (see 286th Report, paras. 267-278) during which it requested the Government to take the necessary steps to amend the ministerial resolution concerning the prohibition of trade union check-off, to investigate the grounds for the dismissal of the nine ANDEN trade union leaders and, in the event that the dismissals were based on anti-union reasons, to reinstate them in their posts, and to keep it informed of the outcome of the application for protection (amparo) lodged by the union ANDEN against the refusal to register its new executive. In a communication of 19 October 1993, the Government provides the following information. The ministerial resolution concerning the deduction of trade union dues was promulgated because of the trade union situation in Nicaragua where trade unions are free to negotiate trade union dues in collective agreements; among the nine workers who were dismissed, one has given up his post, another is working for the Ministry, two have been reinstated and one worker is still awaiting the judicial decision with respect to his case; the Court of Appeal has still not handed down its decision in the case of the application for protection (amparo) lodged by the union ANDEN. The Committee takes note of the information supplied by the Government and would like to insist that it amend the above-mentioned ministerial resolution. The Committee also expresses the hope that in its decision concerning the application for protection (amparo) lodged by the union ANDEN, the Court of Appeal will take fully into account the principle pointed out by the Committee in its recommendations.

28. As regards Case No. 1661 (Peru), at its May 1993 meeting (see 287th Report, paras. 283 to 290), the Committee requested the Government to keep it informed of the judicial decision handed down in the dispute which arose within the National Confederation of Workers (CNT). In a communication dated 7 June 1993, the Government states that in pursuance of current legislation, the authority responsible for the trade union register in the Ministry of Labour and Social Welfare confirmed the recognition of the executive committee of the CNT headed by David Quintana Arellano and did not give effect to the request for recognition made by Victor Sanchez Zapata, given that the latter had not respected articles 21 and 29 of the organization's internal rules. In another communication of 23 June 1993, the Government specifies that the Superior Court of Lima confirmed the previous decision and rejected the "amparo" proceedings filed by Victor Sanchez Zapata. The Committee takes note of this information.

29. Finally, as regards Cases Nos. 1444, 1585 and 1610 (Philippines), 1575 (Zambia), 1590 (Lesotho), 1605 (Canada/New Brunswick), 1606 (Canada/Nova Scotia), 1607 (Canada/Newfoundland), 1616 (Canada), 1618 (United Kingdom), 1621 (Sri Lanka), 1622 (Fiji), 1624 (Canada/Nova Scotia), 1628 (Cuba), 1643 (Morocco), 1664 (Ecuador), 1666 (Guatemala), 1668 (Cyprus), 1669 (Chad), 1672 (Venezuela), 1677 (Poland) and 1683 (Russia), the Committee requests the Governments concerned to keep it informed of developments in the various matters. The Committee hopes that these Governments will communicate the information requested shortly.