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 7 and 14 November 1996, under the chairmanship of Professor Max Rood.

2. The members of Argentinian and French nationalities were not present during the examination of the cases relating to Argentina (Case No. 1881) and France/French Polynesia (Case No. 1858) respectively.

3. Currently, there are 81 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 22 cases on the merits, reaching definitive conclusions in 17 cases and interim conclusions in 5 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. 1886 (Uruguay), 1887 (Argentina), 1888 (Ethiopia), 1889 (Brazil), 1890 (India), 1891 (Romania), 1892 (Guatemala), 1894 (Mauritania), 1895 (Venezuela), 1897 (Japan), 1898 (Guatemala), 1899 (Argentina), 1900 (Canada), 1901 (Costa Rica), 1902 (Venezuela), 1904 (Romania), 1905 (Zaire), 1906 (Peru) and 1907 (Mexico), 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 following cases: Nos. 1796 (Peru), 1812 (Venezuela), 1825 (Morocco), 1828 (Venezuela), 1833 (Zaire), 1845 (Peru), 1850 (Congo), 1851 (Djibouti), 1852 (United Kingdom), 1863 (Guinea), 1872 (Argentina), 1873 (Barbados), 1877 (Morocco), 1878 (Peru), 1880 (Peru). In Cases Nos. 1872 (Argentina) and 1878 (Peru), the Governments stated that they would send their observations soon.

Observations requested from complainants

6. In Case No. 1862 (Bangladesh), the Committee is still awaiting the complainant's comments. The Committee requests the complainant to send without any further delay the observations and information requested. In Case No. 1881 (Argentina), the Committee decided to transmit a copy of the Government's reply to the complainants in order for them to provide their own comments. In Case No. 1882 (Denmark), the complainant announced that it would be sending additional information shortly.

Partial information received from governments

7. In Cases Nos. 1512, 1539, 1595, 1740, 1778, 1786 and 1823 (Guatemala), 1835 (Czech Republic), 1843 (Sudan), 1864 (Paraguay), 1869 (Latvia) and 1903 (Pakistan), 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

8. As regards Cases Nos. 1859 (Canada), 1865 (Republic of Korea) and 1891 (Romania), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1831 (Bolivia), 1854 (India), 1867 (Argentina) and 1885 (Belarus), 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.

Missions

10. The Committee has been informed that a mission directed by Mr. Santiago Perez del Castillo took place in Colombia from 7 to October 1996 to gather information relating to Cases Nos. 1761, 1787 and 1896. The Committee intends to examine these cases at its next meeting on the basis of the mission report of the representative of the Director-General.

11. The Committee was also informed that a mission directed by Mr. Barney Jordaan took place in Swaziland from 30 September to 4 October 1996 to gather information regarding Case No. 1884. The Committee intends to examine this case at its next meeting on the basis of the mission report of the representative of the Director-General.

12. 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: Bulgaria (Case No. 1765) and Indonesia (Case No. 1773).

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

Case No. 1509 (Brazil)

13. The Committee examined the case concerning the murder of the trade unionist Valdicio Barbosa dos Santos at its March 1995 meeting (see 302nd Report, para. 16). At this occasion, the Committee noted that the Public Prosecutor had charged Mr. Marçal da Rocha with being responsible for the murder in question, and that, even if his whereabouts were unknown, the judicial authorities ruled that he should be placed in preventive detention and be arrested. Furthermore, the Committee noted that the Public Prosecutor had charged Mr. Romualdo Eustaquio Luz Faria with being jointly responsible in the murder and summoned him for interrogation. In a communication dated 19 April 1996, the Government states that Mr. Marçal da Rocha is still at large and that the police are trying to arrest him. In addition, the Government states that the judicial authorities summoned the defendant Mr. Romualdo Eustaquio Luz Faria to file his defence pursuant to the relevant provisions of the penal procedural code. The Committee notes this information and requests the Government to continue to keep it informed on the legal proceedings in this case.

Case No. 1623 (Bulgaria)

14. During its last examination of this case in March 1994 (see 292nd Report, paras. 333-352), the Committee requested the Government to make every effort for a new law to be enacted defining the principles for the redistribution of trade union assets confiscated from the former Bulgarian trade unions, with a view to allowing the Working Group to continue its work and ensuring that all the measures already taken and those yet to be taken will in the near future result in a definitive allocation of the assets and funds covered by the law of 1991. The Committee further requested the Government to ensure that the voluntary contributions paid in by members of the Confederation of Independent Trade Unions in Bulgaria (CITUB) since February 1990 be included in the share of the confiscated assets to be transferred to the CITUB.

15. In a communication dated 20 May 1996, the Government indicates that a circular was addressed to the two trade union organizations in order to obtain information about the actual number of trade union members. Furthermore, the Minister of Finance issued an order and instructions to the Regional Governors related to the improvement of management of the State property included in the assets of Sofis Ltd., of which CITUB is a shareholder. According to the Government, these documents do not infringe trade union rights and freedoms and correspond to the state duties for fund control of the state budget for social needs and state property management. Furthermore, the Government indicated that it is always ready to take into account the claims and to satisfy the demands of trade union and employers' organizations which are connected to their needs in the framework of the current legislation, and the Government has relied and will rely on a useful dialogue with all of the social partners at national level.

16. The Committee takes note of this information. It notes with regret, however, that the Government has not provided any information concerning the progress made in enacting a new law defining the principles for a definitive allocation of the trade union assets and funds confiscated from the former Bulgarian trade unions. The Government is requested to keep the Committee informed of any developments in this regard and to provide copies of the final decisions concerning redistribution as soon as they are enacted.

Cases Nos. 1678 and 1781 (Costa Rica)

17. At its meeting in March 1996, the Committee made the following recommendations on the pending allegations (see 302nd Report, para. 255):

- As regards the collective dispute in the LACSA enterprise (Case No. 1695), the Committee requests the Government to keep it informed of the outcome of the appeal lodged by the representative of the Pilots' Association against the administrative resolution DRT-771-94 and on the decision adopted by the National Labour Inspectorate Board on the complaint submitted by the Pilots' Association against LACSA for having violated the collective agreement.

- As regards the collective dispute in Geest Caribbean Limited (Case No. 1781), the Committee:

- - insists on the need that the agreement of 16 May 1994, signed by the parties, be fully applied, including clause 3 concerning dismissals;

- - requests the Government to ensure that trade union rights in the above-mentioned enterprise are fully respected, in particular protection against anti-union dismissals, the right of trade union officials to enter into contact with plantation workers with due respect for property rights and the guarantee that "standing workers' committees" (non-unionized) do not undermine the role of the representative trade unions in the enterprise. The Committee requests the Government to keep it informed of the measures it takes in this respect and the outcome of the appeal lodged with the Constitutional Chamber against the administrative decision of 24 May 1994;

- - requests the Government to keep it informed of the evolution of proceedings under way concerning the acts of violence which occurred in May 1994 during the collective dispute in question, and to send it the text of the sentence handed down. The Committee insists that an investigation be undertaken on the allegations of acts of violence which were said to have been committed as much by the workers as by the police.

18. In a detailed communication of 2 September 1996, the Government indicated a number of steps which had been taken by the Ministry of Labour to resolve the dispute concerning the LACSA enterprise. The Government also mentioned the appeals and procedural tactics used by the parties which has delayed the outcome of the administrative procedure concerning the violation of the collective agreement, and which is still not over. As concerns the collective dispute at Geest Caribbean Ltd., the Government indicated that, in response to the Committee's recommendation, it carried out conciliation and mediation between the parties so that the agreement of 16 May 1994, including section 3 concerning dismissals, be applied. The Government pointed out, however, that Geest Caribbean Ltd. ceased operating in May 1996; it has retained its legal personality but does not employ any workers in the country. The Government adds that, by Circular DM 1428-96 of 19 June 1996 (a copy of which was annexed), the Ministry of Labour gave instructions to the Labour Inspectorate for inspectors to ensure that trade union rights be fully respected in Geest Caribbean Ltd. and in the other companies in the country, including on the plantations, as well as to guarantee that "the standing workers' committees" (not unionized) not interfere with the role of representatives at the undertaking. Furthermore, circular DM 2408-95 of 21 December 1995 gives priority as a matter of urgency to any investigative procedures concerning disloyal work practices contrary to trade union rights, which should be transmitted immediately to the National Labour Inspectorate Board. The Government also indicates that it is not aware of any appeal before the Constitutional Court which was referred to by SITGAH. As concerns the evolution of the procedure concerning the violent acts which occurred in May 1994 during the collective dispute at Geest Caribbean Ltd., the Government points out that the accused (former workers in the company and most of them Nicaraguans without papers) have not been found and that the procedures have been suspended, except as concerns one of them which was found to be without basis.

19. The Committee takes note of this information. As concerns the collective dispute at LACSA (Case No. 1695), the Committee, while noting the delaying tactics evoked by the Government, deplores the delay in the administrative procedure concerning the violation of the collective agreement and recalls that the facts alleged in the complaint date to 1992. The Committee emphasizes that procedures concerning violations of Convention No. 98 should be rapid so that the necessary measures of redress may be truly effective. An excessive delay in the examination of cases and, in particular, the absence of a decision for a long period of time is equivalent to the denial of justice and thus to the negation of trade union rights for the persons concerned.

20. As concerns Case No. 1781, the Committee takes note with interest of the steps taken by the Ministry of Labour along the lines of some of the recommendations previously made by the Committee concerning the collective dispute at Geest Caribbean Ltd. The Committee also takes note of the information provided by the Government according to which the penal procedures have been suspended since the persons concerned have not been found. The Committee notes that the company in question ceased operating in May 1996 and requests the Government to indicate, according to the terms of the legislation, the possibilities for applying the agreement of 16 May 1996 given the recent cessation of activities by the company in question.

Cases Nos. 1594 and 1846 (Côte d'Ivoire)

21. As regards Case No. 1594 (Côte d'Ivoire), the Committee had requested the Government to endeavour to take measures so that the workers dismissed at Irho Lame as a result of their legitimate trade union activities are reinstated in their posts (see 300th Report, para. 17, approved by the Governing Body in November 1995).

22. In a communication of 14 June 1996, the World Confederation of Labour (WCL) explained the reasons for which "Dignité" rejected the Government's proposals on the reinstatement of the striking workers at Irho Lame. It stated that the proposals were unfair and discriminatory, since prior to the arrival of the direct contacts mission in April 1994 the Government had proposed that only 200 workers out of a total number of 618 be reinstated. In January 1995, following the visit of the direct contacts mission, it was proposed that only 100 workers be reinstated at a rate of 25 every six months over a period of two years. The other striking workers (blue-collar workers) were not reinstated and were deprived of their rights. Furthermore, the WCL adds that nothing has been done to reinstate the workers in Blohorn, Sodeci, Scaf Bassam, Nelci and Soat. It emphasizes that none of the recommendations made by the direct contacts mission concerning the autonomous port of Abidjan have been implemented.

23. In a communication of 4 September 1996, the Government states that "Dignité" won the elections in several enterprises and that since the return of trade union pluralism it has been associated with worker-related issues. The Government explains that the initiative for elections of workers' representatives lies with employees and that the labour inspector only intervenes if the employer fails to do so. The Minister for Employment guaranteed that the elections would be held in the autonomous port of Abidjan and the administration undertook consultations on this matter. In addition, in a letter of 10 May 1995 it informed the Chairman of the Dockers Trade Union (SEMPA) that SYLIDOPACI, a rival union with a number of members, must be allowed to exercise its trade union activities freely. Eventually, elections were held at Cosmivoire, Blohorn and Cotivo.

24. As regards the dispute at Irho Lame, the Government points out that legal action is being taken against Mr. Dabone Hassan and Mr. Diebre Boukari for violence and assault, that they were detained on 30 January 1995 and are awaiting trial by the investigating magistrate. The Government states that following the ILO mission, the Irho Lame management put forward a plan to reinstate 100 employees on a gradual basis, owing to economic difficulties. The plan was rejected by the Secretary-General of "Dignité" who requested the immediate reinstatement of all the workers who had been on strike for almost two years. The Government states that it has endeavoured to find a solution to the conflict.

25. The Committee takes note of this information and requests the Government to keep it informed of the outcome of the elections of workers' representatives in the autonomous port of Abidjan, as well as of developments with respect to the reinstatement of the workers dismissed as a result of the labour disputes. Moreover, the Committee expresses its profound concern at the fact that several trade unionists, whose situation had been examined in Case No. 1846, are still being held in detention. It strongly reiterates the contents of its recommendation in paragraph 267 of its 302nd Report in which it requested the Government to take the necessary measures to ensure the immediate release of Dabone Hassan, Denemou Augustin, Karim Sawadogo and Kagambega Philippe. It urges the Government to keep it informed of the measures taken in this respect.

Case No. 1628 (Cuba)

26. When the Committee examined this case at its meeting in May 1993 (see 287th Report, paras. 268-282) it requested the Government to make an immediate pronouncement on the registration of the General Union of Cuban Workers (UGTC) - which according to the Government is now called the Union of Cuban Workers (USTC) - and to keep it informed of any measures adopted in this respect. In a communication dated 16 December 1993, the Government had criticized the recommendations made by the Committee and indicated, in particular, that the case lacked legal objectivity because the request initially made by Mr. Rafael Gutierrez Santos to the Minister of Justice (request for registration of a so-called trade union organization) was abandoned by a letter of 1 April 1992, which had been transmitted to the Committee. At its meeting in March 1994, the Committee took note of the Government's observations and decided to transmit them to the complainant organization so that it might provide any comments or information that it considered to be useful in this respect, and in particular, any documents proving effectively the request for registration of the organization concerned. (See 292nd Report, para. 21.)

27. In its communication of 30 June 1995, the International Confederation of Free Trade Unions (ICFTU) pointed out that, during the events which shook Cuba in the summer of 1994, thousands of Cuban citizens left the island, including Mr. Rafael Gutierrez Santos, president of the USTC. Recognition of the USTC as a trade union organization has still not been granted. Nevertheless, the activities of the organization have not been paralysed and its members elected a new executive committee on 13 September 1994. Furthermore, the ICFTU states that Mr. Rafael Gutierrez Santos had not requested the withdrawal of his request for registration, but had simply informed the Government of the change in the organization's name. In its communication of 31 May 1996, the ICFTU indicated that the USTC has still not been recognized, although it is prospering and has affiliates in many provinces of the country. The USTC claims to have 3,000 members. The ICFTU adds that Mr. Pedro Rubio Balbun, president of the USTC, has been the victim of a search by the Policy Police at his home, which is also the headquarters of the organization, and of a seizure of all documentation and of the basic resources indispensable to the proper functioning of the trade union organization.

28. In its communication of 12 September 1996, the Government states that, after analysing the contents of the two communications submitted by the complainant organization and after having undertaken relevant inquiries, it appears that the persons mentioned as leaders of the organization called "Union of Cuban Workers" do not qualify as unionists. This so-called trade union organization is not present in any work centre in the country and its officers have not been elected by any workers' collective. This situation leads one to believe that the Committee should limit itself to the contents of Convention No. 87 on freedom of association and the right to organize which protects workers in the exercise of their trade union rights and not persons who invoke the Convention, without fulfilling the minimum requirements for exercising a true trade union activity, by using a false image of unionists towards other ends. The Government recalls the provisions of the Labour Code which guarantee the right of workers to form unions without previous authorization, the right of assembly and the right to freely express one's opinions.

29. Furthermore, it was not possible to verify the truth of the search of the domicile mentioned in the ICFTU communications. The police services have no trace of such a search and no complaint has been made in this regard. As the arguments of the ICFTU are not well founded, the Committee should not artificially pursue the treatment of this case since it does not concern a trade union activity covered by Convention No. 87.

30. The Committee takes note of the information provided by the Government which does not contain any elements likely to modify the conclusions which it has made in its previous reports. The Committee deplores the fact that, since 1992, the USTC has not been legally recognized by the authorities, a matter which has nothing to do with its degree of representativeness. It insists that this independent organization, outside of the existing recognized trade union structure, be registered and allowed to function fully without discrimination. The Committee observes with concern that another case concerning Cuba (No. 1805) examined in this report also concerns the denial of recognition of an independent trade union organization. The Committee refers to the conclusions formulated in this case and in particular to the comments of the Committee of Experts requesting the Government "to guarantee in law and practice the right of all workers and employers, without distinction whatsoever, to establish independent organizations of their own choosing, outside any existing recognized trade union structure if they so desire (Article 2 of Convention No. 87) and the right to elect their representatives in full freedom (Article 3 of Convention No. 87)." (See Report III (Part A), ILC, 82nd Session, 1995, page 163.)

Case No. 1641 (Denmark)

31. As regards Case No. 1641 (Denmark), last examined at its November 1994 meeting (see 294th Report, paras. 39 to 77), the Committee has received a communication dated 19 June 1996, in which the complainant, the Danish Confederation of Professional Associations (AC), states that it has reached a settlement with the Minister of Labour concerning the legislation which imposed a wage ceiling on public job offers for the long-term unemployed. The Committee notes this information with interest.

Case No. 1860 (Dominican Republic)

32. As regards Case No. 1860 (Dominican Republic), the Committee requested the Government to forward to it details of the sentence handed down in respect of the soldier who shot the worker Alexander García during a demonstration, and also to conduct an investigation into the allegation concerning the attack on a young girl during another demonstration which took place on 18 September 1995. In its communication of 9 May 1996, the Government provides details of the outcome of the court martial in which Private Wagner Valentín Consuegra Rodríguez was sentenced to four months' imprisonment for involuntary homicide. The Committee takes note of this information. It also takes note of the fact that the authorities have been unable to verify whether or not the allegations concerning the attack against a young girl during the demonstration of 18 September 1995 are true, since the name of the person concerned was not known.

Case No. 1824 (El Salvador)

33. The Committee examined this case at its March 1996 meeting (see 302nd Report, paras. 142 to 160). At this occasion, the Committee presented the following recommendations:

(a) The Committee requests the Government to take the necessary steps to carry out an independent inquiry to look into the allegations concerning the death of the trade unionist, Mrs. Julia Esperanza Quintanilla (according to the complainant organization the management of the enterprise refused to the trade unionist the possibility of seeking medical assistance), and in the event that these facts are confirmed, to bring appropriate action before the courts in order to determine responsibilities and punish the guilty. The Committee requests the Government to keep it informed in this respect.

(b) The Committee requests the Government to inform it whether Mr. Juan José Huezo is still in prison and, in the affirmative, to explain what charges have been brought against him. Similarly, the Committee requests the Government to release him immediately if his detention is connected with his trade union activities. The Committee requests the Government to keep it informed in this respect.

(c) As regards the alleged arrests (by the security staff in the enterprise) of a member of the trade union executive and two workers of the Sanobang Wool Apparel El Salvador SA enterprise and Elisio Castro Pérez, Secretary-General of the trade union of the textile factory, Mandarin International, as well as the physical attacks on the trade union official of the same trade union, Mrs. Marta Rivas (both events allegedly occurred on 15 May 1995), the Committee requests the Government to take steps to carry out an inquiry into these allegations and, if it is ascertained that the trade unionists in question were unlawfully deprived of their freedom - even for a short period of time - and that Mrs. Rivas was physically attacked by the security guards of Mandarin International, to bring appropriate action before the courts so that the guilty should be duly punished. The Committee requests the Government to keep it informed in this respect.

(d) Concerning the allegations relating to the anti-union dismissals of 18 workers in the Gabo SA enterprise and 150 trade union members in the Mandarin International enterprise, the Committee requests the Government to take steps immediately to carry out an inquiry in the enterprises in question and, in the event of noting that the alleged dismissals were based on the fact that those concerned were trade union officials or trade unionists or that they had carried out lawful trade union activities, to take steps to ensure that the dismissed workers might be immediately reinstated in their jobs if they so desire. The Committee requests the Government to keep it informed of any development in this regard.

(e) The Committee requests the Government to carry out as a matter of priority an inquiry concerning the threats made against trade unionists in two enterprises noted in the allegations in the free zones and to take strong measures to provide effective protection for the workers in these enterprises. The Committee requests the Government to keep it informed in this respect.

34. In a communication dated 17 July 1996, the Government states that Mr. Huezo was detained on charge of aggression against a national police officer as well as for illegal occupation of the workplace, resistance to public authorities and abusive use of the right to strike and to work. In addition, the Government indicates that Mr. Huezo was released on 20 April 1996 since the penalties in case he is found guilty of such offences is less than three years of prison. There would still be an additional charge against this trade unionist based on allegations of, inter alia, false testimony, sequestration, murder threats, illegal detention, defamation and damages and interests, filed in November 1994.

35. The Committee notes this information and requests the Government to keep it informed of the legal proceedings against Mr. Huezo. The Committee notes that the Government, on the other hand, has not provided any information with regard to the other allegations examined, and hopes that the Government will do so in the near future.

Case No. 1468 (India)

36. As regards Case No. 1468 (India) relating to seven different trials concerning serious incidents that had taken place in 1988 in the State of Tripura where charges had been brought against trade unionists, the Committee last examined this case at its November 1995 meeting (see 300th Report. para. 20). The Committee had then noted that the prosecution had withdrawn the charges in three trials resulting in the closing of these cases and that one other trial had led to the conviction of four persons who, moreover, had pleaded guilty. The Committee had further noted that the three remaining trials were still pending in the courts. In a communication dated 3 September 1996, the Government states with regard to the three remaining trials, that the Sub-Divisional Magistrate had dropped the charges in one case and that the accused persons had been acquitted following the trials in the two other cases. The Committee takes notes of this information with interest.

Case No. 1817 (India)

37. This case concerned the promulgation by the Government of the Central Civil Services (Recognition of Service Association) Rules of 1993 (the Rules). At its March 1996 meeting (see 302nd Report, paras. 297 to 328), the Committee requested the Government to take steps to amend some provisions of the Rules insisting, inter alia, on the fact that restrictions limiting all public servants to membership of unions confined to that category of workers are admissible if their organizations are not restricted to employees of any particular ministry, department or service and if the first-level organizations may freely join federations and confederations of their own choosing.

38. In a communication dated 30 September 1996, the Government, while recalling that India has not ratified the relevant Conventions on freedom of association, insists on the special status of its civil servants according to which they have to be differentiated from other workers. The Government recalls that civil servants enjoy a high degree of job security and that they have to remain totally impartial in the execution of their work. The Government adds that civil servants' legitimate concerns such as job security, wages, health and other areas of welfare are adequately taken care of by their terms of appointment and the Rules. They do not need the protection granted by general labour legislation to other workers. The Government concludes that it is not in a position to take any step which would tend to dilute the existing distinction between civil servants and industrial workers and is not able therefore to go along with the Committee's recommendations.

39. Noting this information and insisting on the fact that the right of all workers, including state employees, to form and join organizations of their own choosing is one of the basic principles of the ILO, the Committee cannot but express the firm hope that the Government will reconsider its view on this matter in the near future.

Case No 1840 (India)

40. At its March 1996 meeting, the Committee requested the Government, inter alia, to take measures to ensure that the competent authorities received instructions, so that during the holding of public meetings, the police resort to the use of force only in situations where law and order were seriously threatened. The Committee also requested the Government to ensure that an independent inquiry was held without delay to determine the justification for the action taken by the police in the Choibari tea estate, Dhuri District, Assam State on 1 May 1995 (see 302nd Report, paras. 329 to 354).

41. In a communication dated 20 June 1996, the Government states that the Committee's recommendation concerning the use of force by public authorities was brought to the notice of the state government of Assam for compliance in future.

42. Furthermore, with regard to the necessity to hold an independent inquiry to establish the circumstances surrounding the 1 May 1995 events at the Choibari tea estate, the Government adds that the inquiry already conducted by the State Labour Commissioner complied with the requirement of independence. The Committee takes note of this information. It expresses the hope that, in future, workers and their organizations will be able to hold public meetings on the occasion of May Day.

Case No. 1552 (Malaysia)

43. When it last examined this case at its November 1995 meeting (see 300th Report, para. 25), the Committee had noted that the High Court had granted an application for an order to quash an industrial court award which had dismissed the claims for reinstatement and compensation presented by 21 dismissed workers of Harris Solid-State Sdn-Bhd, and that it had also granted an application by these workers that their case be retried in another division of the Industrial Court. The Committee had requested the Government to keep it informed of the Industrial Court's decision.

44. In a communication dated 7 October 1996 the Government indicates that the Court of Appeal has ordered the reinstatement of the 21 workers dismissed from Harris Solid-State Sdn-Bhd, but that the employers are expected to file an appeal to the Federal Court.

45. The International Metalworkers' Federation (IMF) also supplied information concerning the Court of Appeal judgement in communications dated 21 August and 7 October 1996. According to the IMF's latest communication, all 21 union activists were indeed reinstated and reported for work on 1 October 1996. They apparently have not yet received, however, the back wages for the last six years which were ordered by the Court.

46. The Committee notes this information with interest and requests the Government to keep it informed of any development as regards the implementation of the Court of Appeal judgement.

Case No. 1698 (New Zealand)

47. The Committee last requested the Government at its meeting in June 1996 (304th Report, paragraphs 14-17) to keep it informed of any significant judgements handed down concerning the implementation of the Employment Contracts Act (ECA) as well as of the developments in the discussion to be held with the New Zealand Council of Trade Unions (NZCTU) and New Zealand Employers' Federation (NZEF). In communications dated 18 June and 25 October 1996, the Government provided further judicial decisions relevant to issues addressed in the Capital Coast Health case.

48. The Government specifies that two further decisions has been issued by the Court of Appeal relating to communications between the employers and employees during negotiations: New Zealand Fire Service Commission v. Ivamy and Ors, CA 145/95 and Airways Corporation of New Zealand Ltd. v. New Zealand Airline Pilots' Association Industrial Union of Workers Inc. and Dallas Richard Bean and Ors, CA 251/95 (ALPA). In both decisions, the Court of Appeal confirmed the principle that if an employer agrees to negotiate, the latter must do so with the employees' authorized representative, in accordance with its decision in Capital Coast Health. The Court of Appeal, however, overturned the Employment Court's decision in both cases to issue an injunction against the employer reasoning that the subject-matter and target of any attempted persuasion are the significant elements in determining whether direct communication with employees is inconsistent with the employer's obligation under section 12(2) of the Employment Contracts Act. Thus, if the communications in question are simply an attempt to persuade employees as to the reasonableness of the employer's stance on a particular issue which all parties understand is the subject of negotiation between representatives, as was determined in both cases on appeal, then it need not amount to a failure to recognize an authority in contravention of section 12(2). On the other hand, the Court of Appeal confirmed that it would be contrary to the Act if employers attempted to exclude the representative and enter into contracts directly with the employee, to persuade employees to withdraw an authority and to call into question the agent's authority to represent employees. In its examination of cases brought under section 12(2), the Court's determination of whether communications are permissible will depend upon the nature of the employment relationship in question, the general background to, and history of the complaint, and the particular circumstances in which the complaint arose.

49. In its latest communication, the Government further provides two recent Employment Court decisions which touch upon the interpretation of the ECA. The Government also indicates that it has had informal discussions with the central organizations of employers and employees which have included, at a general level, some aspects relating to the statutory bargaining framework. The Government adds that it will keep the Committee informed of the outcome of the discussions.

50. The Committee takes note of this information and requests the Government to continue to keep it informed of any other relevant judgements rendered concerning the implementation of the Employment Contracts Act as well as of any developments in the discussions held with the NZCTU and the NZEF in this regard. Nevertheless, the Committee reaffirms its previous recommendations and requests the Government to take the necessary measures to implement these recommendations.

Case No. 1726 (Pakistan)

51. During its last examination of this case in November 1994 (see 295th Report, para. 23), the Committee had urged the Government to take the necessary steps to ensure an independent and impartial investigation into the reported arrest, detention and torture of workers at the Daewoo Motorway Construction Project and to keep it informed of the findings and the measures taken to redress the situation. The Government was also requested to keep the Committee informed of the steps taken to ensure the registration of the Awami Union and to amend its legislation in order to ensure the right to organize and to bargain collectively for workers, in accordance with Conventions Nos. 87 and 98.

52. In a communication dated 14 May 1996, the Government indicates that the Labour Appellate Tribunal has upheld the decision of the Labour Court ordering the competent authority to register the Awami Union and that the registration certificate has now been issued.

53. The Committee takes note of this information with interest. It notes however that the Government has not replied to the Committee's request that an independent investigation be held to look into the reported arrests, detention and torture of workers. The Committee would therefore once again urge the Government to take the necessary steps to ensure that these matters are the subject of an independent investigation and to keep it informed of the outcome. The Government is also requested to continue to keep the Committee informed of the steps taken to amend the legislation so as to ensure the right of workers to organize and bargain collectively.

Case No. 1826 (Philippines)

54. During its last examination of this case in March 1996 (see 302nd Report, paras. 386-414), the Committee had urged the Government, inter alia, to take the appropriate steps immediately to ensure that a certification election was conducted at the Cebu Mitsumi Inc. in Danao City.

55. In a communication dated 31 May 1996, the Trade Union Congress of the Philippines (TUCP) provided information concerning the non-implementation by the Government of the Committee's recommendations. In particular, the TUCP states that a certification election was set for 24-25 April 1996 but very few workers were able to cast their votes. According to the TUCP, the management of Cebu Mitsumi took over the control of the election proceedings by determining the place where voting would take place, the number of workers who were allowed to vote at a given time and the manner in which the voting would be conducted. Out of a list of eligible voters equalling approximately 9,000 workers, only 300 chosen by the management were actually able to vote on the first day of the certification election and the same again the following day. The TUCP transmitted copies of worker affidavits testifying that management sent them home on the day prior to the election indicating that the 24th and 25th were "forced leave days". The TUCP adds that on the second day, about 100 "goons" of Cebu Mitsumi swarmed the entrance gate and drove away company employees waiting to vote. Given these circumstances, the Associated Labor Unions (ALU) - TUCP representatives moved for the suspension of the certification election proceedings and were harassed by the company goons as they left the premises for their safety. The Department of Labor and Employment (DOLE) and the management of Cebu Mitsumi, however, continued with the election despite the absence of union representatives. ALU-TUCP has brought the matter to the attention of the Secretary of Labor and Employment for immediate and appropriate action.

56. The Committee takes note of this information. It deeply regrets that the Government has not replied to the allegations made by the TUCP. It urges the Government to establish immediately an independent investigation into the conduct of the April 1996 certification election at Cebu Mitsumi and to keep the Committee informed of the findings and, if the allegations prove to be true, to take the necessary measures to ensure a new certification election with all the assurances of impartiality and non-interference. The Government is requested to keep the Committee informed in this regard.

Case No. 1785 (Poland)

57. In its 302nd Report, approved by the Governing Body in March 1996, the Committee requested the Government to keep it informed of any progress concerning the restitution of trade union property confiscated during the period of martial law (see paragraphs 57-59).

58. In a communication dated 12 August 1996, the Government informs that the Diete adopted amendments to the Act of 25 October 1990 on the restitution of trade union assets. The new law was promulgated on 4 July 1996 and entered into force on 4 August 1996. It takes into account the Constitutional Tribunal decision of 25 February 1992 and allows the Government to put into place a procedure for the redistribution of assets according to which those of the former Central Council of Trade Unions (CRZZ) will be divided into two equal shares between the NSZZ Solidarnosc and the Polish Trade Union Alliance (OPZZ). Since an agreement concerning the distribution of assets was not reached between the two and pursuant to the provisions of the new legislation, the Minister of Labour has to establish a list of the assets and decide, by executive order in consultation with both parties, which assets will belong exclusively to one or the other. The executive order should be published before 30 June 1996.

59. The Committee notes this information. It requests the Government to ensure that there will be an equitable redistribution of assets between the two trade union confederations in accordance with the Committee's previous recommendations. It also requests the Government to keep it informed of any progress concerning the final redistribution of trade union assets and to communicate a copy of the executive order of the Minister of Labour.

Case No. 1788 (Romania)

60. In its 302nd Report approved by the Governing Body in March 1996 (paragraph 60), the Committee had requested the Government, inter alia, to keep it informed of the outcome of the legal proceedings concerning three trade unionists who had participated in the railway strike in 1993 and to inform it whether their dismissal has been revoked. In a communication dated 20 May 1996, the Government indicates that the President of the National Railway Company of Romania (SNCFR) confirmed in a letter dated 8 May 1996 that, pursuant to their requests, Ioan Vlad, Nicolae Vlad and Francisc Ungureanu were reinstated in their jobs on 23 November 1995 and that they exercise functions corresponding to their qualifications and seniority. The Committee notes this information with interest.

Case No. 1581 (Thailand)

61. As regards Case No. 1581 (Thailand), the Committee had requested the Government, at its meeting in November 1995 (see 300th Report, para. 34), to furnish a copy of the State Enterprise Labour Relations Bill so that it might assess its contents in the light of freedom of association principles and to keep it informed of the developments relating to the procedure for the adoption of this Bill in Parliament.

62. In a communication dated 11 July 1996, the Government indicates that the Bill in question passed the second and third reading of the House of Representatives on 17 April 1996. The Senate has approved the principles of the Bill and set up an ad hoc committee to scrutinize the Bill before submitting it to the full Senate for adoption.

63. The Committee takes note of this information. Furthermore, it has taken note of a recent draft of the Bill in question which has been brought to its attention and which still diverges from the principles of freedom of association on a number of important points, particularly as concerns the right for workers to establish and join organizations of their own choosing and to carry out their activities without interference. The Committee would draw the Government's attention to the availability of ILO technical assistance for facilitating the search for solutions to these divergencies. It trusts that the Bill will be adopted in the near future and that, in its final form, it will be in conformity with freedom of association principles. It requests the Government to keep it informed of any progress in this regard.

Case No. 1856 (Uruguay)

64. During its last examination of this case, in March 1996, the Committee made the following recommendation: "Regarding the dismissal allegedly on financial grounds of 39 workers four days after the end of the dispute in the Perses SA enterprise, the Committee requests the Government to conduct an inquiry into the reasons for the dismissals and, should it find that they were ordered on anti-union grounds, to take steps to have the persons concerned reinstated in their jobs. The Committee requests the Government to keep it informed on the subject" (see 302nd Report, para. 439).

65. In communications dated 9 September and 4 October 1996, the Government indicates that, having learned of the decision of staff restructuring in the enterprise, the National Labour Directorate convoked the representatives of the Uruguayan Health Federation (FUS) and of the Workers' Central (PIT-CNT) to inform them of the enterprise's decision. The Government states that, according to the enterprise, the decision to restructure its staff had to be taken due to various economic conditions and that it resulted in the reduction of its staff by 8 per cent (approximately 110 employees) and that a majority of those dismissed were not unionized. The Government adds that, neither the local unions (AFP), nor the Uruguayan Health Federation (FUS), nor the Workers' Central (PIT-CNT), requested intervention from the Ministry of Labour and Social Security. Finally, the Government adds that, in response to the Committee's request, the General Inspectorate for Labour and Social Security is beginning an investigation, the results of which will be provided to the Committee. The Committee notes the Government's statement and awaits the information promised.

Case No. 1797 (Venezuela)

66. The Committee examined this case at its March 1995 meeting (see 297th Report, paras. 127 to 136), and suggested on that occasion that the Government withdraw a bill which was before the National Congress, concerning the right of workers' unions, federations and confederations to exercise internal democratic procedures, since it contained certain provisions which were inconsistent with the principles of freedom of association. The Committee also reminded the Government that the technical assistance of the Office was at its disposal, if it so wished, for the preparation of a new bill. By a communication of 2 August 1996, the Government forwarded a new bill: "Act respecting the democratic rights of workers within their trade unions, federations and confederations". The Committee points out that the new bill contains several provisions which are contrary to trade union autonomy and regulates in too much detail the electoral procedure of workers' organizations and the conditions of eligibility for trade union office, and once again reminds the Government that the technical assistance of the Office is at its disposal if desired.

Case No. 1822 (Venezuela)

67. During its last examination of this case by the Committee in June 1996 (see 304th Report, paras. 499-511), an allegation remained pending concerning the closure of the Editores El Nuevo Pais CA for a false financial crisis and returning to publish the newspaper El Nuevo Pais one month later with a different staff, in the absence of any trade union or collective agreement. The Committee made the following recommendation: "The Committee considers that the closure of Editores El Nuevo Pais CA may have been for anti-union reasons and calls on the Government to conduct an inquiry in this regard and, if such intentions are proven, to take measures, through legal proceedings, to compensate the National Press Trade Union and its former members in the enterprise concerned for the prejudice sustained, including by reinstating them in their jobs if they so wish. The Committee requests to be kept informed in this regard."

68. In a communication dated 7 June 1996, the Government stated that as soon as the discussions concerning the draft collective labour agreement between the National Press Trade Union (SNTP) and Editores El Nuevo Pais, which lasted six months, arrived at an impasse, the union requested that the conciliation discussions be turned into dispute proceedings against the company. In the meantime, the company was closed for reasons of a financial nature. During the negotiations within the dispute proceedings, once the Conciliation Board was named, the workers put an end to their relationship with the company, reaching a compromise settlement (with final legal effect), in conformity with the Basic Labour Act. As a result, these workers were dismissed with compensation, as the settlement had been approved by the Labour Inspectorate (a copy of the labour settlement was attached).

69. The Committee takes note of this information. Nevertheless, the Committee insists on the importance of carrying out investigations into complaints of discriminatory practice in order to redress any wrongs if their anti-union nature is proven and to apply the sanctions provided in the legislation.

70. Finally, as regards Cases Nos. 1618 (United Kingdom), 1685 (Venezuela), 1712 (Morocco), 1719 (Nicaragua), 1723 (Argentina), 1725 (Denmark), 1777 (Argentina), 1783 (Paraguay), 1791 (Chad), 1793 (Nigeria), 1795 (Honduras), 1799 (Kazakstan), 1806 (Canada/Yukon), 1807 (Ukraine), 1809 (Kenya), 1811 (Paraguay), 1816 (Paraguay), 1818 (Zaire), 1819 (China), 1821 (Ethiopia), 1830 (Turkey) and 1837 (Argentina), 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.