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 30 and 31 May and 6 June 1996, under the chairmanship of Professor Max Rood.

2. The member of Argentinian nationality was not present during the examination of the cases relating to Argentina (Cases Nos. 1832 and 1837).

3. Currently, there are 70 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, it examined 25 cases on the merits, reaching definitive conclusions in 11 cases and interim conclusions in 14 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1873 (Barbados), 1875 (Costa Rica), 1877 (Morocco), 1878 (Peru), 1879 (Costa Rica), 1880 (Peru), 1881 (Argentina), 1882 (Denmark), 1883 (Kenya), 1884 (Swaziland) and 1885 (Belarus) 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. In Case No. 1878 (Peru), the Government has indicated it will be sending its observations shortly.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1773 (Indonesia), 1805 (Cuba), 1812 (Venezuela), 1815 (Spain), 1823 (Guatemala), 1825 (Morocco), 1831 (Bolivia), 1833 (Zaire), 1843 (Sudan), 1845 (Peru), 1854 (India), 1861 (Denmark), 1867 (Argentina), 1868 (Costa Rica), 1871 (Brazil) and 1872 (Argentina). In the cases of Cuba (No. 1805), Argentina (No. 1872) and India (No. 1854), the Governments stated that they would send their observations soon.

Observations requested from complainants and government

6. The Committee requests the Government and complainants in Case No. 1859 (Canada) to provide further detailed information concerning the machinery for determining matters of employment security so that it may be in a position to examine this case in full knowledge of the facts.

Observations received from complainants

7. In Case No. 1828 (Venezuela), the Committee noted that the Trade Union Federation of Aeronautical Pilots of Venezuela (FESPAVAN) indicated in a communication dated 9 May 1996 that it wished to maintain its complaint. The Committee therefore requests the Government to transmit its comments and observations on the substance of this case.

Partial information received from governments

8. In Cases Nos. 1835 (Czech Republic), 1855 (Peru), 1864 (Paraguay), 1869 (Lithuania) and 1876 (Guatemala), the Governments have sent partial information on the allegations made. The Committee requests all of these Governments 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

9. As regards Cases Nos. 1765 (Bulgaria), 1829 (Chile), 1858 (French Polynesia) and 1874 (El Salvador), the Committee has received the Governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

10. As regards Cases Nos. 1687 and 1691 (Morocco), 1737 (Canada), 1761 (Colombia), 1834 (Kazakstan), 1857 (Chad) and 1870 (Congo), 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 the 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 case to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Case No. 1850 (Congo).

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

Case No. 1629 (Republic of Korea)

12. At its March 1995 meeting (see 297th Report, para. 23), the Committee had requested the Government to confirm that Chung Moo-Sung, the last of the 19 detained unionists whose release had been previously requested by the Committee, had indeed been released. The Committee had further requested the Government to take steps to ensure that certain provisions of its labour-related legislation were amended in conformity with freedom of association principles. In a communication dated 16 April 1996, the Government indicates that all the 19 detained unionists have been released either on parole or on the completion of their sentences. It further states that the Labour Laws Review Committee, which consists of members from academia, labour and management, has been studying revisions of the labour laws. However, there are sharp differences in opinion between labour and management on the issue of labour law revisions. As a result, the Government had organized six sessions of open nationwide forums between October and December 1995 to build a consensus through dialogue on issues of labour law reform. The Government indicates that common understanding is now being reached on a broad spectrum of issues regarding the fundamental necessity of institutional reform in industrial relations. The Committee takes note of the above information. It notes with interest that all detained unionists have been released. It trusts that the Government will continue to take steps to ensure that the legislative amendments requested by the Committee in its previous conclusions and recommendations will be adopted in the near future.

Case No. 1793 (Nigeria)

13. At its meeting in November 1995 (see 300th Report, paras. 245 to 271), the Committee requested the Government to take the necessary measures to ensure the immediate release of trade unionists Kokori, Addo, Aidelomon and Iregha, to repeal immediately Decrees Nos. 9 and 10 and to allow independently elected officials to exercise their trade union functions once again, to restore to the executive councils of the NLC, NUPENG and PENGASSAN access to their respective trade union premises and bank accounts and to withdraw the suspension of their check-off facilities. Finally, the Committee called upon the Government to withdraw immediately the government-appointed Sole Administrator of these organizations. In a communication dated 28 March 1996, the Government indicated that the following trade unionists had been released: Mr. Agamene, Secretary-General of PENGASSAN; Mr. Addo, Third Vice-President of PENGASSAN; Mr. Iregha, branch chairman, PENGASSAN; and Mr. Aidelomon, branch chairman, PENGASSAN. Furthermore, the Government stated that the national delegates' conference for the election of the executives of the NLC would have taken place, but for the restructuring of the industrial unions by the unions themselves and on their own volition. The Committee takes due note of the information concerning the release of certain detained trade unionists. However, it expresses its strong condemnation at the fact that the Government has not provided any information concerning the current status of Mr. Kokori, General Secretary of NUPENG, who it understands is still being detained by the authorities. Furthermore, the Committee deeply regrets that the Government has provided no information with respect to its recommendations in paragraph 271(c) and (d) of its 300th Report concerning the repeal of Decrees Nos. 9 and 10, the restoration of access to trade union premises and bank accounts, the withdrawal of the suspension of check-off facilities and the immediate withdrawal of the government-appointed Sole Administrator. The Committee, therefore, strongly urges the Government to take the necessary measures to ensure the immediate release of Mr. Kokori and to allow independently elected officials to exercise their trade union functions once again as indicated above and to keep the Committee informed in this regard. The Committee reiterates in the strongest terms the Governing Body's call to the Government to accept an ILO mission at the earliest possible date to examine these outstanding questions.

Case No. 1698 (New Zealand)

14. The Committee requested the Government at its meeting in November 1995 (300th Report, paras. 26-29) to keep it informed of the outcome of the Capital Coast Health case so that it could examine the impact of this jurisprudence. In a communication dated 8 March 1996, the Government provided the judgement handed down in the Capital Coast Health case as well as other relevant court decisions.

15. The Government highlighted the findings in the various judgements furnished and which touched upon the following issues: recognition of authorized representative; communications between employers and employees during negotiations; implied obligations of trust and confidence; authorization and ratification; and bargaining behaviour. In summary, according to the Government, the case-law in Capital Coast Health and other cases has now clearly confirmed the principle that recognition of the authorized representative means that, once employers and employees have agreed to negotiate, they must negotiate through any representative authorized by the other party. Moreover, the courts have consistently found that mutual obligations of trust and confidence are implied terms in employment contracts, that they continue to operate during negotiations and that they must be respected. Freedom of association and collective bargaining is supported under the current legislative environment through enforcement of bargaining undertakings agreed to by the parties and the availability of mediation in the Employment Tribunal. Other cases have demonstrated the importance of the statutory ratification requirements in upholding the integrity of collective bargaining and clarified that claims for relief in relation to harsh and oppressive behaviour can be made in respect of an employment contract which has expired or by a former employee.

16. In the Capital Coast Health case, the Court of Appeal has confirmed that section 12 of the Employment Contracts Act (hereinafter, "the Act") gives employees the right to appoint a representative and to have the representative recognized by the employer. As to the question of whether direct communications by an employer with employees who have a representative in the course of negotiations constitute a breach of section 12 of the Act or only amount to an exercise of the freedom to express views or provide information, the Court of Appeals held that this was a matter of "striking a balance between the competing rights of the parties - those of the employer under section 14 of the Bill of Rights Act, and those of the employee under section 12 of the Employment Contracts Act. It is not a case of one prevailing over the other, but of both being given sensible and practical effect ... Once (the negotiation) process is under way with an authorized representative participating, the process may not be conducted directly with any party so represented. The provision of factual information does not impinge on that process. But anything that is intended or is calculated to persuade or threaten the consequences of not yielding does. Whether any words or actions are of that kind is a question of fact to be determined on an overall view of what was said or done and the context in which it was said or done". The Court then went on to determine whether the communications in question in the case were actually calculated to persuade the workers. The Court of Appeal upheld the findings of the Employment Tribunal in this regard with respect to three of the four communications on appeal. With respect to a communication concerning, inter alia, the severe financial consequences of a strike and the likelihood of these costs being reflected in future settlements, the Court found that the dividing line between informing and warning (which are permissible) and threatening if a negotiated position is not abandoned (which is not permissible) was not crossed.

17. The Committee notes this information with interest. The Committee requests the Government to keep it informed of any significant judgements handed down concerning the implementation of the Employment Contracts Act as well as of the developments in the discussions to be held with the NZCTU and the NZEF.

Case No. 1618 (United Kingdom)

18. At its March 1996 meeting (see 302nd Report, paras. 24-26), the Committed noted the Government's indications that the hearing in the Harrison v. Kent County Council case had been postponed at the request of the parties in order to negotiate a possible settlement and requested the Government to keep it informed of the developments in this regard. Furthermore, the Committee once again urged the Government to take steps to extend to workers an express protection against blacklisting or other forms of discrimination based on past trade union membership or activities.

19. In a communication dated 13 March 1996, the Government indicates that the position of the Harrison v. Kent County Council case remains unchanged and the parties are still attempting to reach a settlement. The Government repeats its conviction that existing legislation already provides adequate protection against discrimination on grounds of trade union membership or activities and that there are extensive procedures to ensure that the legislation is effectively implemented. Consequently, the Government does not believe that there is any need to take further steps at this time, but it will keep the Committee informed should there be any legislative developments in this area.

20. The Committee takes note of this information and requests the Government to continue to keep it informed of any developments in the Harrison case. In addition, the Committee must once again recall that the circumstances giving rise to this case indicated that an express protection in the legislation against blacklisting or other forms of discrimination based on past trade union membership or activities was necessary in order to ensure full protection to workers in this regard. The Committee urges the Government to give consideration to such explicit protection and to keep it informed of any measures taken.

Case No. 1727 (Turkey)

21. At its November 1995 meeting (see 300th Report, para. 35), the Committee had noted that a Bill which aimed to secure the trade union rights of public employees was pending debate before Parliament. The Committee had also requested the Government to provide the information requested in paragraph 332(b) of the 295th Report concerning the functioning without hindrance of the branches and local offices of EGITIM-IS, the withdrawal of legal or administrative proceedings undertaken against trade unionists and the annulment of acts of anti-union discrimination. In a communication dated 9 April 1996, the Government provides the following information: (i) the Council of State, on 21.6.1995, upheld the verdict of the Administrative Court in the Province of Van lifting the decision of the governorship of Van to close down the Van branch of the EGITIM-IS union; (ii) the Administrative Court in the Province of Eskisehir, on 6.10.1993 lifted the administrative ban on plays to be staged by the Eskisehir branch of the EGITIM-IS union; (iii) the Penal Court of second instance in the Province of Kütahya, on 3.3.1993 acquitted Messrs. Riza ALPAY and Zekeria AKPINAR, who had edited the periodical of the EGITIM-IS union, the publication which was banned on 11.11.1992, of any criminal liability; (iv) the public prosecutor decided on 29.4.1993 not to prosecute Messrs. Ceyhan KAYALI, Mehmet ZEVZEK, Ahmet GUNDUZLER, Hamdi KARAGOZOGLU, M. Ramazan BUYUKDEMIRCI, Emrullah GURER, Zati KARA, Nizamettin KENDIR, Mehmet ENGIN, Ismail Hakki TOPKAYA for having held the Congress of the Kesan branch of the EGITIM-IS union; (v) the Administrative Court in the Province of Zonguldak on 24.6.1993 repealed the decision of the District Governor of Caycuma Township suspending the Caycuma branch of the EGITIM-IS union. The Committee notes with interest the above information. It nevertheless notes that the Government has not indicated whether the legal proceedings undertaken against Dr. Altunya have been withdrawn and whether the transfer and suspension of promotion of Mr. Müseyin Mercan have been annulled, and would request it to do so as soon as possible. The Committee would further request the Government to keep it informed of developments regarding the adoption of the Bill guaranteeing the trade union rights of public employees, in full conformity with Conventions Nos. 87, 98 and 151.

22. Finally, as regards Cases Nos. 1552 (Malaysia), 1581 (Thailand), 1628 (Cuba), 1640 (Morocco), 1678 (Costa Rica), 1685 (Venezuela), 1695 (Costa Rica), 1714 (Morocco), 1724 (Morocco), 1752 (Myanmar), 1782 (Costa Rica), 1783 (Paraguay), 1785 (Poland), 1791 (Chad), 1795 (Honduras), 1799 (Kazakstan), 1806 (Canada/Yukon), 1807 (Ukraine), 1809 (Kenya), 1811/1816 (Paraguay), 1817 (India), 1818 (Zaire), 1821 (Ethiopia), 1824 (El Salvador), 1840 (India), 1847 (Guatemala), 1849 (Belarus), 1856 (Uruguay) and 1860 (Dominican Republic), 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.