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 2, 3 and 20 June 1994, under the chairmanship of Mr. Jean-Jacques Oechslin, former Chairman of the Governing Body.

2 The member of the Committee of Argentinian nationality was not present during the examination of the case relating to Argentina (Case No. 1745).

3. The Committee is currently seized of 100 cases, in which complaints have been submitted to the governments concerned for observation. At its present meeting, it examined 28 cases on the merits, reaching definitive conclusions in 20 cases and interim conclusions in eight 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: Nicaragua (Nos. 1764 and 1776), Bulgaria (No. 1765), Portugal (No. 1766), Ecuador (No. 1767), Iceland (No. 1768), Costa Rica (Nos. 1770, 1780 and 1781), Pakistan (No. 1771), Cameroon (No. 1772), Indonesia (No. 1773), Australia (No. 1774), Belize (No. 1775), Argentina (No. 1777) and Guatemala (No. 1778) and Canada (No. 1779) 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: Peru (Nos. 1527, 1541 and 1598), Malaysia (No. 1552), Spain (No. 1561), Venezuela (Nos. 1612 and 1676), Morocco (Nos. 1640 and 1646), Costa Rica (Nos. 1678 and 1695), El Salvador (Nos. 1693, 1754 and 1757), Turkey (Nos. 1727 and 1755), Canada (Nos. 1733, 1743, 1747, 1748, 1749, 1750 and 1758), Guatemala (No. 1740), Argentina (No. 1744), Burundi (No. 1753), the Czech Republic (No. 1762) and Norway (No. 1763). As regards Peru (Cases Nos. 1527, 1541 and 1598), the Government announced that it was going to send its observations soon. Concerning the Russian Federation (Case No. 1769), the Committee is awaiting observations from the Government on the last communication of the complaints.

Observations requested from complainants and/or governments

6. With respect to Cases Nos. 1658 (Dominican Republic) and 1665/1667 (Ecuador), 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. The Committee is therefore compelled to consider these cases as closed. In Case No. 1651 (India), the Committee is awaiting comments and observations from both the complainants and the Government. In Case No. 1736 (Argentina), the Committee is awaiting comments from the complainants. In Case No. 1738 (Canada/Newfoundland), the Committee requests the complainants to submit additional information in support of their complaint. The Committee requests the complainants and the governments concerned to transmit, without delay, the observations and information requested.

Partial information received from governments

7. In Cases Nos. 1678 and 1695 (Costa Rica) and 1729 (Ecuador) 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. 1718 (Philippines), 1723 and 1741 (Argentina), 1732 and 1751 (Dominican Republic), 1752 (Myanmar), and 1756 (Indonesia) at its next meeting.

9. In Cases Nos. 1682, 1711 and 1716 concerning Haiti, the Committee was seized with complaints lodged respectively by the International Confederation of Free Trade Unions (ICFTU), the World Confederation of Labour (WCL) and the General Independent Organization of Haitian Workers (OGITH). These cases concern allegations referring mainly to detentions and dismissals of trade unionists and are directed against the military authorities who exercise actual control within the country. The Committee faces a specific procedural problem in these cases since the allegations could only be transmitted to the Haitian Government recognized by the international community, although it cannot be held responsible for the acts which are the subject of the complaints. Although it does not have any reply at its disposal, the Committee envisages examining these cases at its next meeting so as to determine which principles of freedom of association are at stake in these cases.

Direct contacts missions

10. As regards Case No. 1594 (Côte d'Ivoire), concerning a complaint presented under article 26 of the ILO Constitution, the Committee had considered that it would be highly appropriate, in view of the importance of this case and of the seriousness of the issues raised, that a representative of the Director-General undertake a direct contacts mission to the country and report to the Committee. In a communication of 19 May 1994, the Government indicates that it is willing to accept such a mission. The Committee takes note of this information and expresses the hope that this mission will take place shortly.

11. As regards Case No. 1698 concerning New Zealand, the Committee has been informed that the Government has accepted a direct contacts mission and that discussions are under way with a view to determining the specific details of the mission.

Urgent appeals

12. As regards Cases Nos. 1512/1539 and 1734 (Guatemala), 1647 (Côte d'Ivoire), 1685 and 1739 (Venezuela) and 1699 (Cameroon), 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.

Absence of replies from governments

13. Amongst the cases examined on the merits, the Committee must present a report on the cases concerning Guinea (No. 1703), Morocco (Nos. 1709 and 1724) and Pakistan (No. 1726) without having received the observations of the Government concerned. The Committee deplores this situation which reflects a failure to cooperate on the part of the Governments concerned and emphasizes, in the interests of these Governments, the importance of a prompt, detailed and full reply from Governments against whom complaints are lodged so that the Committee can take into account the views expressed by all parties concerned.

14. The Committee draws the legislative aspects of Cases Nos. 1568 (Honduras), 1582 (Turkey), 1648/1650/1731 (Peru), 1726 (Pakistan), 1730 (United Kingdom), 1742 (Hungary) and 1760 (Sweden) to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

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

15. As regards Cases Nos. 1434 and 1477 (Colombia), the Committee had requested the Government at its March 1994 meeting (see 292nd Report, paras. 230 to 265) to keep it informed of the developments in all legal proceedings under way concerning the murders, disappearances and attacks involving trade union leaders and trade unionists and to keep it informed of any release or of any indictments of trade unionists who had been detained on 22 November 1992, 30 May and 11 June 1993. The Committee had also requested the Government to keep it informed of the developments in cases filed by members of the trade union of employees of the Bank of Caldas (SINDEBANCALDAS) against this bank in both criminal and labour courts, and of the various allegations concerning the Colgate Palmolive and Croydon enterprises and the Cauca Family Compensation Fund. In a communication of 28 April 1994, the Government states that it has taken the necessary steps to gather information on the legal proceedings under way concerning all acts of violence (and it communicates information on the legal situation with regard to a number of those who have been prejudiced) as well as on the allegations relating to the above-mentioned enterprises. The Committee takes note of this information and trusts that the Government will communicate shortly the information requested.

16. As regards Case No. 1569 (Panama), the Committee had requested the Government at its February 1992 meeting (see 281st Report, paras. 118 to 146) to take new measures with a view to obtaining the reinstatement of the trade union leaders and workers who were dismissed by the Water and Electricity Board (IRHE) and the National Telecommunications Board (INTEL) on account of a strike in December 1990, and to keep it informed of the outcome of the appeals lodged by these workers before the Third Chamber of the Supreme Court. Subsequently, the Government had indicated that the Supreme Court had handed down several decisions stating that the dismissals that took place under Act No. 25 of 1990 were not illegal. In communications of 27 and 29 October 1993 respectively, the Trade Union of Water and Electricity Board Workers (SITIRHE) and the International Confederation of Free Trade Unions (ICFTU) had criticized these decisions since they affirmed the legality of the dismissals which took place by virtue of this Act, and since several trade unionists were without jobs as a result of these judicial decisions. In a communication of 12 January 1994, the Government had stated that the decisions of the Supreme Court were final, that they were not subject to appeal and that the principle of separation of powers prevailed in the country. In a communication of 14 December 1993, the Latin American Central of Workers (CLAT) had alleged that on 10 November 1993, 134 workers (including a trade union leader) from the Water Board were suspended then dismissed within the framework of a restructuring process with the approval of the Minister of Labour and in spite of the fact that the Supreme Court had ordered the suspension of this measures following an application for amparo (enforcement of constitutional rights). In a communication of March 1994, the Government indicates, with regard to the CLAT's allegations, that the dismissals took place following a staff reduction programme for economic reasons in accordance with the applicable rules. Similarly, the Government specifies that an inquiry was carried out into the economic situation of the IRHE and that trade union organizations were consulted. Finally, the Government adds that the trade union leader who had been suspended had been reinstated and it provides a copy of the reinstatement decision dated December 1993. The Committee takes due note of the fact that this trade union leader was reinstated in his post. It recalls that it can examine allegations concerning economic rationalization programmes - whether or not they imply redundancies - only in so far as they might have given rise to acts of discrimination or interference against trade unions. However, in the present case, the restructuring process appears to be of a general nature and does not seem to have affected only trade unionists (according to the complainants a single trade union leader was suspended) but also several workers. Furthermore, the Committee observes that the complainants do not furnish any proof whereby these redundancies could be categorized as acts of anti-union discrimination. The Committee regrets that the decisions of the Supreme Court stated that the dismissals that took place by virtue of Act No. 25 of 1990 were not illegal. Taking into account its previous recommendations and the new staff reduction programme, the Committee requests the Government to take measures to obtain the reinstatement of the greatest possible number of workers of the IRHE and, in particular, trade union leaders.

17. Regarding Case No. 1572 (Philippines), at its 259th Session (March 1994), the Committee had requested inter alia to be kept informed of developments in the situation of a number of trade union members and leaders. In a communication of 20 May 1994, the Government stated that it could not pursue its investigation without detailed and updated information, particularly as it affects the individuals mentioned in the complaint, and that it has requested such information from the President of the complainant organization. The Committee notes that the Government will provide this information as soon as it is received. It further requests the Government to indicate whether it has opened the inquiries mentioned in its previous recommendations (292nd Report, para. 312(b) and (c)), and to keep it informed of their findings.

18. As regards Case No. 1582 (Turkey), the Committee had requested the Government at its February 1992 meeting (see 281st Report, paras. 223 to 236) to keep it informed of the necessary steps taken to guarantee trade union rights and freedoms for public sector employees, including those employed in the banking sector, as well as the right to strike of workers in the banking sector. In a communication of 21 January 1994, the Government states that since the ratification by Turkey of Conventions Nos. 87 and 151, legislative work aimed at guaranteeing freedom of association for all public sector workers including those employed in the banking sector had started and that the social partners could already comment on a draft Bill on the matter. The Government adds that while the legislative work is at this stage, public sector workers already enjoy in practice the right to establish occupational organizations since the Prime Ministerial Circular No. 1993/15 of 15 June 1993 removed any remaining obstacles in this respect. The Government also indicates that it will inform the Committee of the legislative arrangements once they are finalized. The Committee takes note with interest of this information and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations in this respect.

19. Concerning Case No. 1615 (Philippines), last examined by the Committee at its March 1994 meeting (see 292nd Report, paras. 313 to 332), the Committee had requested the Government to provide it with the text repealing Policy Instruction No. 20 of 1977 which imposed the establishment of a bargaining unit at the sectoral level, contrary to freedom of association principles, as well as a copy of the new guidelines said to have been adopted by the Department of Labour and Employment to govern the building industry, and which allegedly include provisions guaranteeing the right to organize and bargain collectively to the workers of this branch. In a communication of 26 April 1994, the Government transmits a copy of Department Order No. 19 of 1 April 1993 which contains guidelines governing the employment of workers in the construction industry. The Committee notes that section 5 of this Order encourages the formation of trade unions and collective bargaining in this industry, provided that the formation or activities of trade unions will not prejudice existing bargaining units, and that section 7 provides that the Department Order supersedes Policy Instruction No. 20 of 1977. The Committee draws this Department Order to the attention of the Committee of Experts on the Application of Conventions and Recommendations. Moreover, it requests the Government once again to keep it informed of the situation of workers dismissed by the Algon enterprise.

20. As regards Case No. 1618 (United Kingdom), last examined on the merits at the May 1993 Session, the Committee recalled the importance of effective procedures to ensure the application in practice of provisions against anti-union discrimination; it reiterated that governments should take stringent measures to combat blacklisting practices, and asked for other specific information. In a communication of 19 May 1994, the Government indicates that it has continued to enhance the protection available to individuals against discrimination on trade union grounds, in particular through the Trade Union Reform and Employment Rights Act, 1993. Under UK law, some unfair dismissal claims may only be made by employees who have served the relevant qualifying period of employment. However, the right not to be unfairly dismissed on grounds of trade union membership, non-membership or activities has never been subject to such qualifying conditions; it applies to all employees whatever their length of service and hours of work. Nevertheless, the right not to be unfairly selected for redundancy on such grounds had previously been subject to qualifying conditions since full-time employees in general had to have two years' continuous service. Paragraph 1 of Schedule 7 of the 1993 Act removes these qualifying conditions: employees selected for redundancy because of their union membership or activities, regardless of their length of service or hours of work, will henceforth be able to complain of unfair treatment and obtain a remedy under the law. The Government adds that the Economic League has now been disbanded. The Committee takes note of this information, commented upon by the Committee of Experts in its 1994 General Report, and requests the Government to keep it informed of the decision issued in the case of Mr. McKevitt, who had been blacklisted by the Economic League.

21. As regards Case No. 1622 (Fiji), last examined at the March 1994 Session (see 292nd Report, para. 20), the Committee had noted certain information with interest and had asked the Government to provide copies of the texts amending the trade union legislation. In a communication of 13 May 1994, the Government states that while the Counter-Inflation (Recommendation) Act has not been amended or repealed, no further Orders have been issued under the Act since it decided to deregulate the labour market in 1991, thus allowing employers and workers the freedom to conclude wage agreements voluntarily. The Government further indicates that it noted the Committee's observations and states that it does not intend to apply the Act again, unless warranted for national interest. As regards the situation at the Vatukoula Mine (raised by the FTUC as an example of its concern that bargaining was hampered by the employer's refusal to recognize independent unions) the Government mentions that a new trade union has been recognized as bargaining agent at the mine, and signed a collective agreement with the new owners of the company; it adds that managerial workers in that enterprise have the right to establish a union of their choice. While taking note with interest of this information, the Committee reiterates its previous recommendations that the trade union legislation be amended so as to bring it into conformity with the principles of freedom of association, and requests the Government to provide a copy of the amending texts as soon as they are enacted.

22. As regards Cases Nos. 1648 and 1650 (Peru), at its November 1993 meeting (see 291st Report, paras. 435 to 474), the Committee had requested the Government, in consultation with the social partners, to take initiatives to modify those provisions of Legislative Decree No. 25593, known as the Industrial Relations Act of 1992, which were contrary to the principles of freedom of association. In its communication of 3 March 1994, the Government states that some of the Committee's recommendations will be presented to the Commission responsible for drawing up the draft texts of the General Labour Code and the Act Respecting Procedures Relating to Labour Law. The provisions that could be amended concern the following matters: the minimum number of 100 members in order to form trade unions would be reduced by 50 per cent; the obligation for trade unions to furnish any reports to the labour authorities would be suppressed; the conditions required in order to become a member of the executive committee (be an active member of the trade union and have spent at least one year working for the enterprise) would no longer be valid. The Committee notes with interest that, as mentioned by the Government, there is the possibility that the above-mentioned provisions will be amended. However, the Committee maintains its previous conclusions in respect of the following provisions (see 291st Report, paras. 456, 460, 468, 464 and 467) and considers, like the Committee of Experts, that such provisions could raise problems with regard to the application of Conventions Nos. 87 and 98, namely: the denial of trade union membership to workers undergoing a period of work probation; the requirement of the majority of not only the number of workers but also of enterprises in order to be able to conclude a collective agreement on the branch or occupational level; excessive restrictions on the right of workers to call a strike; the labour authority's power, in the event of disagreement, to establish a minimum service in the event of a strike in essential public services. In these circumstances the Committee, like the Committee of Experts, requests the Government, in consultation with the social partners, to take initiatives to amend its legislation in order to bring it into conformity with the provisions and principles of Conventions Nos. 87 and 98. The Committee once again draws the attention of the Committee of Experts in this respect.

23. As regards Case No. 1669 (Chad), at its May 1992 meeting (see 287th Report, paras. 304 to 334) the Committee had requested the Government to indicate: (i) whether the Union of Trade Unions of Chad (UST) had been able to resume all its trade union activities; (ii) whether the right of workers to strike in order to defend their occupational interests had been re-established; (iii) if measures had been taken to reinstate in their jobs the persons who were victims of anti-trade union discrimination following strikes. In its communication of 3 May 1994, the Government gives assurance that it has taken all the steps to guarantee the effective exercise of the right to organize, that the numerous strikes in the public and private sectors that had paralyzed the country had not been suppressed and that negotiations for a social charter are under way with the most representative trade union federations. The UST is involved in the implementation by the transitional Government of its part in the agreement and there are no restrictions on the UST's activities. Certain state employees, who were suspended or dismissed have been reinstated in conformity with the Government's part of the agreement. The Government attaches to its communication copies of texts relating to the lifting of various measures of dismissals (62 state employees from different ministerial departments have been reinstated) and of compulsory retirement (68 state employees who were obliged to take early retirement have now been returned to their former ministries). The Committee takes note of this information with interest. Nevertheless, it once again requests the Government to indicate whether the right to strike has been re-established and, if so, by virtue of which legislative provision this has been done.

24. Concerning Case No. 1700 (Nicaragua), the Committee had examined it at its November 1993 meeting (see 291st Report, paras. 298 to 311) and had requested the Government to keep it informed of the outcome of the judicial proceedings taken against those responsible for the murder of Mr. Sequeira, leader of an employers' organization, as well as to step up the inquiry under way into the bomb attack against the COSEP headquarters on 2 December 1992. In communications dated 18 and 23 March 1994, the Government states that the courts have handed down severe sentences against those responsible for the murder of Mr. Sequeira, in particular one sentence of 20 years' imprisonment; it attaches the text of the ruling to its communication. The Committee takes note of this information and trusts that the Government will provide, as soon as possible, information on the outcome of the inquiry under way into the bomb attack against the COSEP headquarters.

25. Concerning Cases Nos. 1702 and 1721 (Colombia), the Committee, at its March 1994 meeting (see 292nd Report, paras. 266 to 285 and 286 to 296 respectively), had requested the Government with regard to Case No. 1702 to keep it informed of the outcome of the judicial proceedings initiated by trade union officials and members of the National Union of State Employees (UTRADEC) dismissed in the department of Cordoba as a result of a restructuring process, and as regards Case No. 1721 to keep it informed of the outcome of the appeals lodged by the 11 Banco Popular workers dismissed at the branches of San Diego in Bogota and Bucaramanga. In a communication of 28 April, the Government states with regard to Case No. 1721 that the appeals lodged by four workers were dismissed and that the seven other appeals are still pending. Similarly, as regards Case No. 1702, the Government states that it has not yet obtained information on the outcome of the appeals pending. The Committee takes note of this information and requests the Government to keep it informed of the outcome of all the judicial proceedings that are pending in the two cases.

26. As regards Case No. 1717 (Cape Verde), at its November 1993 meeting (see 291st Report, paras. 358 to 394), the Committee had recommended that the Government and the trade union organizations concerned should try to reach a final agreement determining the allocation of the assets belonging to the former National Union of Workers of Cape Verde - Trade Union Federation (UNTC-CS). In a communication of 24 May 1994, the Government indicates that the Council for Social Dialogue had put the recommendations of the Committee on Freedom of Association on its agenda. However, the UNTC-CS refused to participate in the discussion, stating that only the courts were competent to resolve the issue. The Government will inform the Committee of the outcome of the proceedings under way. The Committee takes note of this information.

27. As regards Case No. 1731 (Peru), the Committee, at its March 1994 meeting (see 292nd Report, paras. 761 to 786), had requested the Government: (a) to provide for a mechanism which ensured that, as regards the collective bargaining process in state-owned enterprises, both the trade union organizations and the employers were adequately consulted and could express their points of view to the National Development Corporation (CONADE); (b) to ensure that the date of entry into force of the collective agreement at the National Ports Enterprise of Peru (ENAPU PERU) would be brought into line with the requirements of section 43(b) of Legislative Decree No. 25593; (c) to take initiatives to amend legislation concerning essential services and minimum services, as well as the employers' unilateral decision to change conditions of employment. In its communication of 18 April 1994, the Government indicates, as regards the first point, that if CONADE has, amongst other functions, that of supervising and evaluating the financial means of state-owned enterprises, this does not mean that it can impose the substance of a list of claims on the workers. In any event, the arbitral award in case of disagreement can be the subject of a judicial appeal if it establishes lower standards than those guaranteed by law; with regard to the second point, the Government clarifies that any complaint concerning the entry into force of the collective agreement lies within the competence of the judiciary; concerning the possibility for employers to change working conditions, the Government emphasizes that in order to do this, the employer has to first of all convoke the workers and meet them directly in order to look for solutions through consensus. In case of failure, the workers can lodge an appeal before the labour authorities. The situation is the same when agreements are proposed through conciliation committees, or when there are administrative proceedings taking place before the judicial authorities. In a communication of 16 May 1994, the Government indicates that the 1994 Financial Act has established that it is the Economics and Finance Minister who is competent to determine the budgetary amount that should be given to state enterprises during collective bargaining. The Committee takes due note of the information furnished by the Government but must once again draw the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

28. Finally, as regards Cases Nos. 1273, 1441, 1494 and 1524 (El Salvador), 1444 (Philippines), 1511 (Australia), 1556 (Iraq), 1557 (United States), 1575 (Zambia), 1581 (Thailand), 1590 (Lesotho), 1605 (Canada/New Brunswick), 1606 and 1624 (Canada/Nova Scotia), 1607 (Canada/Newfoundland), 1616 (Canada), 1623 (Bulgaria), 1628 (Cuba), 1630 (Malta), 1638 (Malawi), 1652 (China), 1656 (Paraguay), 1675 (Senegal), 1677 (Poland), 1683 (Russia), 1688 (Sudan), 1697 (Turkey), 1705 (Paraguay), 1710 (Chile), 1713 (Kenya), 1714 (Morocco), and 1722 (Canada/Ontario), 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.