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 17, 18 and 25 March 1994, under the Chairmanship of Mr. Jean-Jacques Oechslin, former Chairman of the Governing Body.

2. The members of the Committee of Indian, Argentinian and Kenyan nationalities were not present during the examination of the cases relating to India (Case No. 1651), Argentina (Cases Nos. 1679, 1684 and 1728) and Kenya (Case No. 1713) respectively.

3. The Committee is currently seized of 110 cases, in which complaints have been submitted to the governments concerned for observation. At its present meeting, it examined 32 cases on the merits, reaching definitive conclusions in 25 cases and interim conclusions in seven 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: Guatemala (No. 1740), Argentina (Nos. 1741, 1744 and 1745), Canada (Nos. 1743, 1747, 1748, 1749, 1750 and 1758), Dominican Republic (No. 1751), Myanmar (No. 1752), Burundi (No. 1753), El Salvador (Nos. 1754 and 1757), Turkey (No. 1755), Peru (No. 1759), Sweden (No. 1760), Colombia (No. 1761), Czech Republic (No. 1762) and Norway (No. 1763), 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: Spain (No. 1561), Venezuela (Nos. 1612, 1676, 1685 and 1739), Côte d'Ivoire (No. 1647), Haiti (Nos. 1682, 1711 and 1716), Colombia (No. 1686), El Salvador (No. 1693), Cameroon (No. 1699), Philippines (No. 1718), Argentina (Nos. 1723 and 1736), Turkey (No. 1727), Dominican Republic (No. 1732), Canada (Nos. 1733 and 1737) and Guatemala (No. 1734). As regards Spain (Case No. 1561), Venezuela (Cases Nos. 1612 and 1739), Argentina (Cases Nos. 1723 and 1736), the governments concerned announced that they were going to send their observations soon. As regards Costa Rica (Case No. 1678/1695), the Committee is awaiting the Government's observations on the most recent communication of the complainants.

Observations requested from complainants and/or governments

6. With respect to Cases Nos. 1658 (Dominican Republic) and 1665/1667 (Ecuador), the Committee is awaiting the comments from the complainants. The Committee requests the complainants concerned to transmit, without delay, the information requested. As regards Case No. 1609 (Peru), the Committee requests the complainants and the Government to provide any additional information so that the matter may be examined in full knowledge of all the facts.

Partial information received from governments

7. In Cases Nos. 1512/1539 (Guatemala), 1527, 1541, 1598 and 1706 (Peru), 1552 (Malaysia) and 1756 (Indonesia), 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 Cases Nos. 1568 (Honduras), 1629 (Republic of Korea), 1641 (Denmark), 1648/1650 (Peru), 1649 and 1719 (Nicaragua), 1671, 1687, 1691 and 1712 (Morocco), 1701 (Egypt), 1730 (United Kingdom), 1735 and 1738 (Canada), 1742 (Hungary) and 1746 (Ecuador) at its next meeting.

Complaint presented under article 26 of the ILO Constitution

9. 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. At its November 1993 meeting, the Committee had requested the Government to accept a direct contacts mission to the country. Since that meeting, no reply has been received. Therefore, the Committee must point out that in the event that it receives no reply for its next meeting, it will consider the setting up of a Commission of Inquiry and the establishment of contacts between the Chairman of the Committee and the Government's delegation to the Conference.

URGENT APPEALS

10. As regards Cases Nos. 1703 (Guinea), 1704 (Lebanon), 1709 and 1724 (Morocco) and 1726 (Pakistan), 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.

11. 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: Nos. 1621 (Sri Lanka), 1679 (Argentina), 1696 (Pakistan), 1697 (Turkey), 1725 (Denmark), 1731 (Peru).

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

12. As regards Case No. 1417 (Brazil) concerning the murder of trade union leaders, the Committee had requested the Government at its November 1991 meeting to continue to keep it informed of developments in the trials concerning the deaths of the trade union leaders Mauro Pires and Sebastiao Teixeira do Carmo (see 279th Report, para. 12). In a communication of 29 October 1993, the Government transmits a copy of the verdict handed down by the Court of First Instance with regard to the murder of Mr. Mauro Pires which sentences the guilty party to 12 years' imprisonment. The Government further states that in July 1993 the sentenced party appealed against this decision. The Committee takes note of this information and requests the Government to provide information on the sentence handed down by the Court of Appeal in this matter as well as to keep it informed of the outcome of the trial concerning the death of Mr. Sebastiao Texeira do Carmo.

13. As regards Case No. 1479 (India), the Committee had noted that the Central Administrative Tribunal of Cuttack dismissed the application of 40 employees regarding wage deductions higher than the corresponding period of a strike in which they had participated. The Committee reiterated its previous recommendation inviting the Government to ensure that workers having organized or participated in apparently lawful industrial action should not be subject to penal or other sanctions (see 287th Report, para. 17). In a communication of 30 December 1993, the Government indicates that the penal action in question had been taken for activities that were not lawful industrial action, since the situation in the Heavy Water Plant is governed by the Central Civil Services (Conduct Rules) 1962, rule 7 of which specifically prohibits the holding of meetings and demonstrations by Government servants within such premises. On a related issue, the Government adds that the Central Administrative Tribunal of Cuttack has now confirmed the disciplinary action taken against Mr. Satapathy, one of the initial complainants in this case (the Appellate disciplinary authority had reduced Mr. Satapathy's penalty to a stoppage of three increments). The Committee takes note of this information.

14. As regards Case No. 1509 (Brazil), the Committee had requested the Government at its November 1990 meeting to send it more precise information on the outcome of the investigation 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 (see 275th Report, para. 26). In a communication of 29 October 1993, the Government states that the magistrates have asked the police of the City of Pedro Canario to hand over the report on this murder in order to continue the investigation. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the judicial investigation.

15. As regards Case No. 1514 (India), last examined by the Committee at its May 1992 meeting (see 283rd Report, paras. 103-123), the Government had been requested: (a) to keep the Committee informed of measures taken, if necessary, to guarantee teachers in general, and members of the Hindustan Engineering Employees' Trade Union (HEETU) in particular, adequate protection against acts of anti-union discrimination, including effective and sufficiently dissuasive sanctions; (b) to establish speedy and efficient procedures allowing the reinstatement of workers dismissed for trade union activities; and (c) to transmit the decisions of the Madras Labour Court concerning the case of 13 employees dismissed and the complaint lodged by the General Secretary of the HEETU. In a communication of 30 December 1993, the Government states: that it is for the courts to decide whether teachers should be considered as workmen under the Disputes Act; that the Industrial Disputes Act already contains procedures allowing dismissed workers to obtain relief from industrial tribunals; and that the Madras Industrial Tribunal has dismissed the complaints in question, as the petitioner trade union did not send a claim statement, nor make representations in respect of several adjournments in the case; that the text of the decision has been requested from the Tamil Nadu authorities. On the first issue, the Committee draws the Government's attention to the fact that, according to the principles of freedom of association, teachers should enjoy the same protection as other workers against acts of anti-union discrimination, independently of the view taken by national courts as to whether or not teachers are covered by the definition of workmen in the Disputes Act. The Committee requests the Government to keep it informed of developments in this respect. As regards the second issue, the Committee recalls that it had already expressed its concern at the slowness of the existing remedies (see 283rd Report, para. 121); it invites the Government to improve these procedures and to keep it informed of developments in this respect. Finally, the Committee requests the Government to provide it with the text of the decision of the Madras Labour Court, referred to by the Government in its communication.

16. In Case No. 1559 (Australia), the Committee, at its November 1992 meeting (see 284th Report), had asked the Government to take measures to remove the requirement, recently introduced in the federal Industrial Relations Act, of a membership of 10,000 for trade union registration at the federal level. The Government, in a communication of 18 January 1994, provides a copy of the Industrial Relations Reform Act 1993. Section 75(c) of the Act amends section 189 of the Industrial Relations Act to provide new criteria for registration: the minimum requirement for the registration of an employee association is now a membership of 100. The Committee takes note with interest of the action taken by the Government.

17. As regards Case No. 1575 (Zambia), at its May 1993 meeting the Committee had requested the Government to take its observations (see 284th Report, paras. 900-919) into account in the drafting of the Industrial Relations Bill and to keep it informed of developments in the adoption process of the text. In a communication of 21 January 1994, the Government indicates that the Industrial Relations Act 1993 (which replaces the Industrial Relations Act 1990), became effective on 30 April 1993. A copy of the new Act has been provided. The Committee notes with interest that many of the issues which had been raised have been addressed in the Act. However, some limitations have not yet been fully removed: minimum membership (100) for the establishment of a trade union (section 9(1) and (2)); ban on multiple office-holding (sections 18(3) and 30(3)); ban on strikes in certain mining operations (section 107(10)(f)); police powers in case of strikes in essential services (section 107(6)). The Committee asks the Government to keep it informed of amendments taking into account its previous observations on these points.

18. As regards Case No. 1581 (Thailand), the Committee had requested the Government at its November 1993 meeting (see 291st Report, para. 21) to keep it informed of any progress reached regarding the adoption of the revised State Enterprise Labour Relations Act. It further requested the Government to provide information on the restitution of assets of the trade unions which had been dissolved under the said Act. In a communication of 23 February 1994, the Government states that the draft revised State Enterprise Labour Relations Act is awaiting consideration of the House of Representatives at the next session with a view to enacting it into law by the National Assembly. As regards restitution of assets of the trade unions which were dissolved under the State Enterprise Labour Relations Act of 1991, the Government points out that since the proclamation and entry into force of the 1991 Act, there has been no transfer or handing over of the assets of the dissolved trade unions to any other juristic persons or to the Thai Red Cross Society. The Committee takes note of this information with interest. It would once again request the Government to keep it informed of developments relating to the adoption of the revised State Enterprise Labour Relations Act.

19. As regards Case No. 1621 (Sri Lanka), the Committee had requested the Government at its February 1993 meeting (see 286th Report, paras. 176-193) to take immediate measures to amend the list of essential services where strikes were banned, which list was established by the 6 July 1989 Essential Services Order issued under the Emergency (Miscellaneous Provisions and Powers) Regulations, as well to remove export industries and other non-essential services listed in the Order as well. It also requested the Government to ensure that the employees of Simca Garments Ltd. in the free trade zone in Colombo who had been dismissed en masse for having gone on strike be immediately reinstated in their jobs and to keep it informed of developments concerning implementation of the Labour Commissioner's request to this end. In a communication of 31 December 1993, the Government provides the following information: (i) services connected with export of commodities and other export products have ceased to be essential services with effect from 17 June 1993 and the Emergency (Maintenance of Exports) Regulations No. 1 of 9 March 1992 have been rescinded on 29 September 1993; (ii) security arrangements at the export processing zones have been revised in June 1993 to "permit not more than two authorized representatives of any trade union to enter any export processing zone on the written invitation of the labour representatives of the Joint Consultative Councils of any enterprise located in the zone in order to meet such labour representatives at a common meeting point within the zone"; (iii) the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 1993 has been amended so that strikes in essential services are no longer illegal provided that the strike has been commenced by a registered trade union and that 14 days' notice has been given to the employer concerned and the Labour Commissioner; (iv) by virtue of Emergency (Industrial Disputes) Regulation No. 1 of 1993, all disputes arising after 24 June 1989 and remaining unsettled shall be referred by the Minister of Labour for arbitration; consequently, any worker who was or is a party to such dispute shall be deemed not to have vacated or terminated his employment at any time after 20 June 1989, by reason of the operation of the provisions of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1993; and (v) an amendment which proposes to introduce a special chapter to the Industrial Disputes Act to provide for unfair labour practices to be deemed offences under the Act and which would guarantee the application of Articles 1 and 2 of Convention No. 98, has been placed before the Cabinet of Ministers; after receipt of Cabinet approval, this amendment will be drafted prior to being presented in Parliament. The Committee takes note of this information with interest. It nevertheless requests the Government to continue to keep it informed of measures taken to ensure that the employees who had been dismissed for having gone on strike are reinstated in their jobs as well as of any developments concerning the preparation and adoption of the amendment which proposes to introduce a special chapter to the Industrial Disputes Act on unfair labour practices. Moreover, the Committee draws the legislative aspects of this case regarding the application of Convention No. 98 to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

20. Regarding Case No. 1622 (Fiji), the Committee, when it last examined it at its May 1993 meeting, had asked the Government once again to amend all those legislative provisions relating to trade unions, enumerated in its previous recommendations and to keep it informed thereto. In a communication dated 24 January 1994, the Government states that it has decided to adopt the following changes: repeal of the ban on multiple office-holding for trade union officers (in this respect the Government states that it has withdrawn action commenced in February 1992 against Mr. M. Chaudhry which was pending in the High Court); repeal of the six weeks' validity period for union strike ballots; repeal of the requirement for secret ballots provided for in Decree No. 44 of 1991; repeal of check-off agreements for public sector unions by restoration of check-off to all public service unions. The Government states that the draft amendments will be submitted to Parliament for adoption and that in the meantime the provisions concerned are considered as redundant and obsolete and are not enforced. The Committee takes note of this information with interest and asks the Government to provide copies of the texts amending trade union legislation as soon as they have been adopted.

21. As regards Case No. 1628 (Cuba), the Committee examined it during its May 1993 meeting (see 287th Report, paras. 268-282) and requested the Government to make an immediate pronouncement on registration of the General Union of Cuban Workers (UGTC) and to keep it informed of any measures adopted in this respect. In a communication dated 16 December 1993, the Government criticizes the Committee's recommendations and in particular points out that this case lacks legal objectivity in view of the fact that the request which was initially made by Mr. Rafael Gutiérrez Santos to the Ministry of Justice (concerning a request for registration of some trade union organization) was discounted subsequently at his request in a letter of 1 April 1992 which had been transmitted to the Committee. The Committee takes note of the Government's observations. It has decided to transmit these observations to the complainant organization so that the latter may provide any comments or information that it considers to be useful in this respect and, in particular, any document proving effectively the request for registration of the organization concerned.

22. As regards Case No. 1630 (Malta), the Committee had requested the Government at its February 1993 meeting (see 286th Report, paras. 576-590) to supply details of the proceedings initiated by workers at the Malta Drydocks who suffered discrimination in their working conditions because of their affiliation to the Union Haddiema Maghqudin (UHM) which is in turn affiliated to the complainant, the Confederation of Malta Trade Unions (CMTU). The employer had allowed overtime to members of another union while it had refused it to workers affiliated to the UHM. The Committee had also requested the Government to keep it informed of progress in the talks under way with the employer over the question of non-discriminatory apportionment of overtime. In a communication of 16 November 1993, the Government states that the Employment Commission, to which the workers concerned had referred their case, decided in favour of two workers and ordered management to pay them compensation. In a communication of 3 December 1993, the complainant points out that its complaint concerns not just the two employees mentioned by the Government, but all those Malta Drydocks employees who were denied overtime by the employer. It further considers that had the Government acted on the Committee's recommendations, there would not have been the need for the employees concerned to act on their own for redress and that the award of the Employment Commission does not release the Government from its obligations to conform itself with the international labour Conventions it has ratified. The Committee takes note of all this information. Regretting that the Government has not furnished any information on the talks under way with the employer over the question of non-discriminatory apportionment of overtime, the Committee can only reiterate the recommendations that it had formulated during its February 1993 meeting and requests the Government to continue to keep it informed of any further information concerning this case.

23. As regards Case No. 1639 (Argentina), the Committee examined it at its February 1993 meeting (see 286th Report, paras. 61-94) and expressed the hope that the Government would, as soon as possible, be able to meet the objectives of its economic plan, so as to fully restore the right to collective bargaining which had been limited by the promulgation of Decree No. 1334/91. In a communication dated 18 November 1993, the Government states that in April 1993 the new trade union executive of the Association of Airline Pilots (one of the complainant organizations) had re-established working relations with Aerolineas Argentinas. These relations were fully normalized after the signing of an agreement providing for a new wage increase. The Government also states that in October 1993 the parties had begun negotiations with a view to renewing the collective labour agreement. The Committee notes this information with interest.

24. As regards Case No. 1666 (Guatemala), the Committee examined it at its May 1993 meeting (see 287th Report, paras. 291-303) during which it requested the Government to ensure that judicial inquiries were carried out as quickly as possible with a view to ascertaining fully the alleged facts (the murder of trade union leader Zenón Sánchez Lopez; the physical attacks on trade unionists Cesario Chenchavac and Jacinto Sánchez del Cid; and the death threats made against CGTG trade union leaders) and to keep it informed of the results of those inquiries as well as the results of the inquiry that was being held on the physical attack against Mr. Jesús Miranda. In a communication of 29 October 1993, the Government states that there have been no denunciations with respect to the outstanding allegations but that it has instructed the competent authority to carry out inquiries into these matters. The Committee takes note of this information and insists that measures be taken to give effect to its recommendations. It requests the Government to keep it informed of the results of the inquiries.

25. As regards Case No. 1668 (Cyprus), the Committee, at its February and May 1993 meetings, had asked the Government to keep it informed of the outcome of the legal proceedings which had been instituted against the strikers in the port of Limassol and to provide the text of any judgement. In a communication dated 20 August 1993 the Government indicates that the charges brought against the arrested strikers were not pursued further as it was considered that this was not in the public interest. The Committee takes note of this information.

26. Finally, as regards Cases Nos. 1273, 1441, 1494 and 1524 (El Salvador), 1444, 1585 and 1610 (Philippines), 1511 (Australia), 1556 (Iraq), 1557 (United States), 1590 (Lesotho), 1605 (Canada/New Brunswick), 1606 and 1624 (Canada/Nova Scotia), 1607 (Canada/Newfoundland), 1616 (Canada), 1618 (United Kingdom), 1643 (Morocco), 1669 (Chad), 1672 (Venezuela), 1675 (Senegal), 1677 (Poland), 1683 (Russia), 1700 (Nicaragua), 1705 (Paraguay), 1710 (Chile) and 1717 (Cape Verde), 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.