Introduction

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 1, 2 and 12 June 1995, under the chairmanship of Professor Max Rood.

2. Currently, there are 95 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, it examined 28 cases on the merits, reaching definitive conclusions in 19 cases and interim conclusions in nine cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

3. The Committee adjourned until its next meeting the cases relating to: El Salvador (No. 1824), Morocco (No. 1825), Philippines (No. 1826), Venezuela (Nos. 1827 and 1828), Chile (No. 1829), Turkey (No. 1830), Argentina (No. 1832), Zaire (No. 1833), Kazakhstan (No. 1834), Czech Republic (No. 1835), Colombia (No. 1836), Argentina (No. 1837), Burkina Faso (No. 1838), Brazil (No. 1839), India (No. 1840), Burundi (No. 1841), El Salvador (No. 1842) and Sudan (No. 1843), 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

4. The Committee is still awaiting observations or information from the governments concerned in the cases relating to: Venezuela (No. 1685), Argentina (No. 1741), Colombia (No. 1761), Colombia (No. 1787), Kenya (No. 1809), Turkey (No. 1810), India (No. 1817), China (No. 1819), Germany (No. 1820) and Venezuela (No. 1822). In the cases of Kenya (No. 1809), China (No. 1819), Germany (No. 1820) and Argentina (No. 1741), the governments stated that they would send their observations soon.

Observations requested from complainants

5. With respect to Case No. 1738 (Canada/Newfoundland), 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 complainant. The Committee is therefore compelled to consider this case as closed. In Cases Nos. 1651 (India), 1789 (Korea) and 1794 (Peru), the Committee is still awaiting the complainants' comments. In Case No. 1765 (Bulgaria), the Committee decided at its present meeting to request additional information from the complainant organization. The Committee requests the complainants to transmit, without delay, the observations and information requested.

Partial information received from governments

6. In Cases Nos. 1719 (Nicaragua), 1737 (Canada), 1744 (Argentina), 1773 (Indonesia), 1796 (Peru) and 1812 (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 all the facts.

Observations received from governments

7. As regards Cases Nos. 1678, 1695, 1780, 1781 (Costa Rica), 1777 (Argentina), 1783 (Paraguay), 1785 (Poland), 1791 (Chad), 1795 (Honduras), 1815 (Spain), 1821 (Ethiopia), 1823 (Guatemala) and 1831 (Bolivia), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

8. As regards Cases Nos. 1649 (Nicaragua), 1682, 1711 and 1716 (Haiti), 1790, 1811 and 1816 (Paraguay), 1793 (Nigeria), 1799 (Kazakhstan), 1804 (Peru), 1805 (Cuba), 1806 (Canada/Yukon) and 1818 (Zaire), 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 its procedure (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 62) 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.

Direct contacts mission

9. In Case No. 1774 concerning Australia, the Government has requested, in a communication of 12 May 1995, that a high-level direct contacts mission to Australia be conducted in order to examine the operation of the industrial relations system at first hand and to prepare a report for the Committee's information. The Committeee accepts the Government's proposal and will examine the case on the basis of the mission report.

10. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Case No. 1759 (Peru).

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

11. As regards Case No. 1509 (Brazil) concerning the murder of the trade union leader Valdicio Barbosa dos Santos, the Committee had requested the Government at its November 1994 meeting to keep it informed of the outcome of the judicial investigation under way (see 295th Report, para. 16). In a communication of 21 March 1995, the Government indicates that the investigation is still continuing. Although sufficient light has not been shed on the circumstances surrounding the murder, there are sufficient elements to prove that certain persons participated in the murder of the trade union leader. The Government also states that any further information obtained in this respect will be transmitted to the Committee. The Committee takes note of this information, expresses the hope that the investigation will ascertain the facts and punish those responsible, and requests the Government to keep it informed of the outcome of the judicial investigation.

12. As regards Case No. 1511 (Australia), the Committee requested the Government at its meeting in March 1995 (see 297th Report, para. 17) to continue to keep it informed of the progress in both the Australian Federation of Air Pilots' (AFAP) appeal against the Victoria Supreme Court decision and the appeal in the section 118A proceedings. Furthermore, while noting that no steps had yet been taken to enforce the award of damages against AFAP and six of its officers, the Committee requested the Government to consider taking steps to persuade the airlines to file a release with the courts thus ensuring that this aspect of the case be brought to an end without maintaining the threat of substantial sanctions against AFAP and its officers. In a communication dated 30 May 1995, the Government indicates that there have been no developments in relation to the enforcement of the award of damages, nor have there been any developments in relation to the appeal by the AFAP against this award. The issue remains outstanding between the parties. As concerns the section 118A proceedings, the Government indicates that a further decision was handed down by the Senior Deputy President of the Australian Industrial Relations Commission (AIRC) on 22 December 1994 indicating that he would issue orders to, among others, deprive the AFAP of the right to represent pilots (without conferring that right upon the ASU). After some procedural complications the orders were made on 1 May 1995 and appeals were lodged against the orders. This matter has been relisted before the Full Bench for mention on 31 May 1995. The Committee takes note of this information and once again requests the Government to continue to keep it informed of the outcome of the section 118A proceedings and the appeals, as well as of any developments in the AFAP appeal against the award of damages. It would also recall that, during its previous examination of this case, the Committee requested the Government to consider taking steps to persuade the airlines to file a release with the courts concerning the damages award in order to ensure that this aspect of the case be brought to an end. It asks the Government to keep it informed of any steps taken in this regard.

13. With respect to Case No. 1705 (Paraguay), the Committee had requested the Government at its November 1993 meeting (see 291st Report, para. 326(b)) to keep it informed of the outcome of the appeal filed with the Supreme Court of Justice in connection with Decree No. 16.769 which limited the right to elect trade union representatives freely. In a communication of 29 May 1995, the Government indicates that the Decree in question has been considered as unconstitutional by the Supreme Court of Justice. It is therefore no longer of any legal value. The Committee takes note of this decision with satisfaction.

14. As regards Case No. 1714 (Morocco), the allegations of which referred to several violations of freedom of association at the private company "Fábrica de Aceites Meknès", located in Rabat, the Committee, having examined the case at its meeting in March 1994 (see 292nd Report, paras. 488-510), requested the Government: (i) to take measures to establish an impartial inquiry with a view to ascertaining the true reasons for the dismissal of the 11 members of the trade union office of the CDT and the four other trade unionists and, if proven that they were dismissed by reasons of their trade union activities, to ensure their reinstatement in their posts and to keep it informed of the findings of this inquiry; (ii) as concerns the violent actions of the police in November and December 1992 during the protest strikes and sit-in demonstrations organized by the workers, to take measures to establish an impartial and thorough inquiry into the relevant circumstances to determine the nature and justification of the police actions and identify those responsible and to keep it informed of the findings of the inquiry; (iii) as concerns the arrest of strikers for which, according to the allegations, the police are responsible, to keep it informed of the developments in the situation of all the workers arrested indicating whether charges are pending against them and, if not, to make efforts to obtain their reinstatement in their posts; (iv) to take the necessary measures to ensure that the over 500 workers allegedly expelled as a result of their participation in the protest strikes are reinstated in their posts and to keep it informed of the developments in their situation; and (v) as concerns the dismissal of Mr. Kouadi Mohammed for, among other reasons, his participation in the march of 1 May 1993 organized by the CDT, to take measures so that he is reinstated in his post and to keep it informed in this regard.

In a communication of 9 March 1995, the Government states that the dismissals of the trade unionists are in no manner related to the forming of a union since they were dismissed prior to the forming of the union and to the strike. The Government indicates that the company "Fábrica de Aceites Meknès" dismissed 11 workers between 22 and 26 October 1992 and that following these dismissals the workers formed an enterprise union affiliated to the CDT. The Government adds that the union called a strike on 4 November 1992, in which many workers participated. Although the labour inspectorate urged the parties to resolve the dispute, their intransigence resulted in the case of the dismissed workers being transferred to the courts. The Government indicated that, among the cases transferred to the court, 42 cases were transferred without compensation, 25 cases with compensation agreed upon, 35 cases have been resolved in favour of the workers and 32 cases rejected. One case has not yet been examined and appeals have been made in other cases. Finally, the Government states that, in light of the legislation in force, the police force is authorized to intervene during strikes only when the exercise of this right exceeds the legal limits and thus threatens public order and violates the right to work.

Under these circumstances, the Committee takes note of the information communicated by the Government and requests it to keep it informed of the outcome of the judicial review to which it has referred. Finally, deeply regretting that the Government has not provided the other information requested, the Committee urges it to take the measures previously requested in its conclusions and to keep it informed in this regard.

15. As regards Case No. 1718 (Philippines), at its November 1994 meeting (see 295th Report, paras. 284-301), the Committee urged the Government, with a view to limiting the restrictions on the exercise of the right to strike and, in accordance with a request made for many years by the Committee of Experts on the Application of Conventions and Recommendations, to amend the provisions concerning: (1) the enforcement of compulsory arbitration when, in the opinion of the Secretary of Labour and Employment, a planned or current strike affects an industry indispensable to the national interest (section 263(g) and (i)); and (2) the dismissal of trade union officials as a penalty for participating in strikes which are declared illegal (section 264(a)). The Committee had also requested the Government to promote negotiations between the Nestlé enterprise and the trade union in order to evaluate the possibility of reinstating the numerous workers who were dismissed after the above-mentioned legislation was applied and strikes had been declared illegal in the enterprise.

As concerns section 263(g) of the Labour Code which concerns the intervention by authorities in disputes affecting national interests, the Government stated in a communication of 16 March 1995 that this section should remain in force, but that efforts would be made so that its application is in conformity with international standards. The Government explained that this power to intervene is granted not only as a means to ensure state survival, but also to balance conflicting positions and interests of the workers and the employers. The Government adds that this power is exercised as a last recourse, after conciliation and mediation have been exhausted to no avail. While workers are constitutionally and statutorily granted the right to strike, according to the Government the exercise of this right is not absolute. As concerns the provision on the dismissal of workers for participating in illegal strikes, the Government believes that it should be maintained and that it should not be considered as a restriction on the right to strike, but rather as a provision which aims at sanctioning illegal strikes. The Government specifies that management is also penalized for unlawful lockouts and that the amended Labour Code provides that workers who have been dismissed as a consequence of an unlawful lockout must be reinstated with full payment of back wages. Finally, as regards the dismissed workers at the Nestlé enterprise, the Government states that it can exert efforts to encourage negotiation among the parties involved in order to evaluate the possibility of reinstating the affected workers, but it points out that there are some difficulties given the fact that a judicial decision has already been rendered in this regard.

The Committee takes note of this information but regrets that the Government has not clearly indicated its intention to take the measures necessary to amend the legislation in the manner indicated by the Committee. It therefore recalls its previous recommendations and urges the Government to take all steps to amend its legislation as requested by the Committee of Experts on the Application of Conventions and Recommendations in order to bring it into full conformity with the principles found in Convention No. 87. Furthermore, the Committee urges the Government to take all the necessary measures to promote negotiations between the Nestlé enterprise and the union. It hopes that these measures will be successful and that the dismissed workers will be reinstated in their jobs.

16. As regards Case No. 1724 (Morocco), the Committee urged the Government at its November 1994 meeting (see 295th Report, para. 22) to communicate its observations concerning the following allegations: the detention of the strikers employed in Sidi-Kacen at the El Baraka agricultural enterprise (including the General Secretary of the union, Mr. Mohammed Zarzour); the person arrested on 14 July 1993 during a trade union demonstration by staff of the Ministry of National Education; the violent intervention by the police to disperse striking workers (in particular during strikes in the SOCAFIR, SICOPAR, El Baraka and PLASTIMA enterprises, as well as during a demonstration by staff of the Ministry of National Education). The Committee also requested the Government to communicate the judgement rendered against 12 striking deep-sea fishermen arrested on 17 July 1993, and against 12 workers at the SOCAFIR enterprise.

In its communication of 9 March 1995, the Government stated that the allegations concerning the intervention of the police and the persecution of some workers have no basis, given that these workers were prosecuted under the legislation in force which sanctions the acts they committed. In particular, the Government indicated that: (1) as concerns the demonstration of staff at the Ministry of National Education, the intervention of the police was necessary to disperse 80 protesters who, having met at the entrance of the Ministry, obstructed circulation and hindered access; (2) as concerns the arrest of 27 workers at the Ex-Comagri company at Sidi Kacen, the workers concerned were prosecuted because of a complaint made by the manager of the agricultural enterprise El Baraka and were convicted for preventing other employees from working and sentenced to a suspended sentence of two months' imprisonment and a fine of 250 dirhams; (3) the 12 strikers at the SOCAFIR enterprise were convicted for preventing other employees from working and were sentenced to a suspended sentence of three months' imprisonment and a fine of 500 dirhams (they have, however, appealed against this judgement); and (4) the 12 deep-sea fishermen arrested in July 1993 were convicted for having prevented other employees from working and have already served out their sentence.

The Committee takes note of this information but regrets that, once again, the Government has not transmitted all the information requested. As concerns the arrest and judicial proceedings with respect to the workers at the different enterprises, the Committee deplores the fact that the Government has not communicated the judgements on the basis of which the strikers were sentenced. The Committee requests the Government to keep it informed of the situation concerning the person arrested on 14 July 1993 during a demonstration of the staff of the Ministry of National Education, and to keep it informed of the results of the judicial proceedings taken against the workers at SOCAFIR. Furthermore, the Committee urges the Government to take all necessary measures to carry out an inquiry into the violent intervention by the police against the strikers and demonstrators during the strikes organized by workers at the SOCAFIR, SICOPAR, El Baraka and PLASTIMA enterprises and the demonstration of staff at the Ministry of National Education to which the Government refers in its observations, without indicating whether an inquiry has been carried out, and to keep it informed of the outcome of such an inquiry.

17. As regards Case No. 1752 (Myanmar), last examined in November 1994 (see 295th Report, paras. 87-119), the Committee urged the Government to: withdraw the requirements by the Seamen Employment Control Division (SECD) that Myanmar seafarers must sign an affidavit before leaving the country, restricting their right to affiliate with or contact the International Transport Workers' Federation (ITF) for assistance to protect their occupational interests; guarantee and respect the rights of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests; and refrain from having recourse to acts of anti-union discrimination against Myanmar seafarers who pursue their legitimate grievances through the ITF and/or its affiliated trade unions. In a communication dated 5 May 1995, the Government indicates that a formal meeting was held between the Ministry of Labour and the Ministry of Transport on 9 February 1995 to discuss the Committee's recommendations in detail. As a consequence of this meeting, the Ministry of Transport revoked the requirement that Myanmar seafarers sign an affidavit before leaving the country, with effect from 9 February 1995, and measures were being undertaken to allow Myanmar seafarers to form organizations to take care of their own affairs, and the Office would be informed of the progress made in this regard. The Committee takes note of this information with interest. It requests the Government to indicate the specific measures undertaken to guarantee the rights of seafarers to form an independent trade union in Myanmar for the defence of their basic rights and interests and to keep it informed of any progress made in this regard.

18. As regards Case No. 1755 (Turkey), last examined by the Committee at its November 1994 meeting (see 295th Report, paras. 333-346) and concerning allegations of anti-trade union dismissals of pilots and other workers in the aeronautical sector and the application of other prejudicial measures (prohibition of carrying out flights) in the context of a dispute between the Turkish Aviation Workers Union (Hava-Is) and the Turkish Airlines company, the Committee requested the Government to take the measures necessary to encourage the parties to come to an agreement so that all of the trade union's leaders and activists, as well as the workers dismissed, be reinstated in their posts and that the Government keep it informed on the outcome of the judicial proceedings in this respect. In a communication dated 24 May 1995, the Government indicates that the legal appeals made by six pilots, five cabin attendants and one dispatcher are still pending, that one pilot has not taken any legal action, and that four pilots and one dispatcher have dropped the appeals which they had initiated. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the judicial proceedings under way.

19. In Case No. 1759 (Peru), the Committee, at its June 1994 meeting (see 294th Report, para. 346), had requested the Government to keep it informed of the outcome of the administrative and judicial proceedings under way regarding the dismissal of the seven trade union officials of the Trade Union of Workers of the Public Welfare Institute of Metropolitan Lima, as well as of the measures taken to amend the legal requirement that more than half of the workers need to adopt the decision to call a strike. In its communication of 20 April 1995, the Government states that according to the President of the High Court of Justice of Lima, the legal action initiated by the complainants was found to be without any grounds on 5 January 1994. This decision was confirmed by the same court on appeal. The Committee takes note of this information and regrets that the Government did not take any initiatives to reinstate the dismissed trade union leaders in spite of the fact that these dismissals were in violation of freedom of association principles. The Committee draws the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

20. As regards Case No. 1760 (Sweden), the Committee had requested the Government at its March 1995 meeting (see 297th Report, para. 33) to keep it informed of any progress made in adopting the government Bill (Regeringens proposition 1994/95:76), dated 20 October 1994, which proposed amendments to the Security of Employment Act which would repeal the transitional rules which overrode certain collective agreements. In a communication dated 20 April 1995, the Government states that the amendments as proposed in this government Bill were adopted by Parliament on 20 December 1994 and took effect on 1 January 1995. The Committee notes this information with satisfaction.

21. As regards Case No. 1763 (Norway), at its November 1994 meeting (see 295th Report, paras. 424-449), the Committee had requested the Government to keep it informed of all measures concerning possible modifications to the system for resolving labour disputes and stressed the importance that this review be conducted with all parties concerned. In a communication of 8 May 1995, the Government indicates that the Labour Law Council, which is responsible for preparing a report on a system for settlement of labour conflicts, has not yet finished its work. It is, however, expected to present a preliminary report during the coming summer, which will be later examined by workers' and employers' organizations in the context of a general hearing. Thereafter, the Labour Law Council will finalize its report. The Government considers that it is the best way to involve and obtain the support of the industrial partners even if it takes some time. The Government adds that before the Labour Law Council starts drafting the framing of the rules of a new Labour Disputes Act, it will consult the ILO. The Committee takes note of this information.

22. Finally, as regards Cases Nos. 1552 (Malaysia), 1568 (Honduras), 1581 (Thailand), 1699 (Cameroon), 1706 (Peru), 1727 (Turkey), 1732 (Dominican Republic), 1734 (Guatemala), 1735 (Canada/Ontario), 1751 (Dominican Republic), 1756 (Indonesia), 1758 (Canada), 1762 (Czech Republic), 1764 (Nicaragua), 1755 (Belize), 1779/1801 (Canada/Prince Edward Island), 1792 (Kenya), the Committee requests the Governments concerned to keep it informed of any developments relating to these cases. It hopes that these governments will quickly furnish the information requested.