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 12, 13 and 19 March 1998, under the chairmanship of Professor Max Rood.

2. The members of Argentinian, Panamanian and Zimbabwean nationalities were not present during the examination of the cases relating to Argentina (Case No. 1924), Panama (Case No. 1913) and Zimbabwe (Case No. 1937), respectively.

3. Currently, there are 55 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 20 cases on the merits, reaching definitive conclusions in 15 cases and interim conclusions in five cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1943 (Canada/Ontario), 1944 (Peru), 1947 (Argentina), 1948 (Colombia), 1949 (Bahrain), 1950 (Denmark), 1951 (Canada/Ontario), 1952 (Venezuela), 1953 (Argentina), 1954 (Côte d'Ivoire), 1955 (Colombia) and 1956 (Guinea-Bissau) 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. 1869 (Latvia), 1873 (Barbados) and 1942 (China/Special Administrative Region of Hong Kong).

Partial information received from governments

6. In Cases Nos. 1835 (Czech Republic), 1927 (Mexico), 1934 (Cambodia) and 1939 (Argentina) 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

7. As regards Cases Nos. 1773 (Indonesia), 1867 and 1887 (Argentina), 1880 and 1906 (Peru), 1888 (Ethiopia), 1914 (Philippines), 1928 (Canada/Manitoba), 1929 (French Guyana), 1930 (China), 1931 and 1932 (Panama), 1941 and 1946 (Chile), the Committee has very recently received the Governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

8. As regards Cases Nos. 1884 (Swaziland) and 1935 (Nigeria), the Committee observes that, despite the time which has elapsed since the submission of these complaints or the last examination of these cases, it has not received observations from the Governments concerned. The Committee draws the attention of the Governments in question 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, if their observations or information have not been received in due time. The Committee accordingly requests these Governments to transmit their observations or information as a matter of urgency.

Serious and urgent cases which the Committee especially draws to the attention of the Governing Body

9. The Committee considered that it should especially draw the Governing Body's attention to certain cases due to the seriousness and urgency of the issues raised in them. These cases concern the following countries: Colombia (Case No. 1787), Nigeria (Case No. 1793) and Sudan (Case No. 1843).

Transmission of cases to the Committee of Experts

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: Sudan (Case No. 1843), United Kingdom/Isle of Man (Case No. 1912).

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

Case No. 1900 (Canada)

11. During its last examination of this case at its meeting in November 1997, the Committee requested the Government to take the necessary measures to ensure that agricultural and horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors all enjoyed the protection necessary to establish and join organizations of their own choosing and called upon the Government to re-certify those organizations which were decertified under Bill 7. The Committee requested the Government to ensure that the right to strike not be denied to agricultural and horticultural workers, domestic workers, architects, land surveyors and lawyers, and to ensure adequate compensatory guarantees where this right may be restricted in respect of the medical profession. The Committee also called upon the Government to take the necessary measures to guarantee access for all the above-mentioned workers to machinery and procedures which facilitate collective bargaining, and to revalidate the collective agreements which had been annulled under Bill 7. Finally, the Committee requested the Government to take measures to ensure that the right to organize and collective bargaining rights are adequately protected in building services and to keep it informed in this regard. (See 308th Report, para. 194.)

12. In a communication dated 30 January 1998, the Government indicates that a decision was rendered on 9 December 1997 by the Ontario Court with respect to an appeal made on behalf of the United Food and Commercial Workers International Union (UFCW) to have Bill 7 declared unconstitutional on the ground that it violated the Canadian Charter of Rights and Freedoms in its repeal of the Agricultural Labour Relations Act, 1994. This judgement concludes that the exclusion of agricultural workers from Ontario's statutory labour relations scheme does not violate their freedom of association, or their right to equal protection and equal benefit of the law, guaranteed by the Charter. The UFCW has appealed this decision to the Ontario Court of Appeal, and the Government indicates that it will keep the Committee informed of further developments in this case.

13. The Government reiterates that the unique characteristics of, and the nature of employment in, the agricultural sector are such as to raise serious questions as to the suitability and propriety of the regime of collective bargaining contemplated by the Labour Relations Act, in particular the dispute resolution mechanisms upon which collective bargaining depends, namely the right to strike and lock-out, and compulsory arbitration. Agriculture in Ontario is overwhelmingly dominated by family farms, and the agricultural sector is characterized by extremely low-profit margins and unstructured, highly personal working relationships. Moreover, employers in this sector are dependent on climatic conditions and seasonal variations and produce highly perishable products. Accordingly, the Government indicates that it does not intend to amend legislation to remove the exclusion of agricultural workers from any statutory labour relations scheme.

14. In conclusion, the Government reiterates its strong commitment to free collective bargaining both in the public and private sectors of Ontario. Bill 7 has established the appropriate balance of power between unions and employers and has facilitated productive collective bargaining, which the Government views as an important component of its strategy to strengthen the economy and create jobs.

15. The Committee notes this information with regret. It must reiterate the conclusions made in this case concerning agricultural workers in its 270th Report and the corresponding recommendations. Furthermore, the Committee notes with concern that the Government has only provided information in reply to its recommendations as they concern agricultural workers, but has not made any indication as to the measures taken to ensure the right to organize, the right to strike (or relevant compensatory guarantees) and the right to bargain collectively with respect to domestic workers, architects, dentists, land surveyors, lawyers and doctors. The Committee requests the Government to keep it informed of any developments in respect of these categories of workers and to indicate whether any measures are envisaged to ensure the rights of agricultural workers either through the Labour Relations Act or through other appropriate means.

Case No. 1910 (Democratic Republic of the Congo)

16. At its June 1997 meeting, the Committee, when examining allegations concerning the Government's interference in the process of collective bargaining at the Marsavco-Zaire enterprise, stressed the importance it attached to respect for Article 4 of Convention No. 98 and requested the Government to keep it informed of the outcome of the negotiations in the enterprise concerned (see 307th report, para. 176(b)). In a communication dated 8 October 1997, the Government informs the Committee that the Government of the previous regime had already dealt with the situation before the Third Republic had been proclaimed. The Government also points out that the union rights in the enterprise in question have been restored, in accordance with the provisions of the Labour Code in force. The Committee notes this information.

Case No. 1594 (Côte d'Ivoire)

17. At its June 1997 meeting, the Committee had asked the Government to state whether the workers dismissed at Irho-Lamé in 1993 who considered that their rights had been impaired had appealed to the courts to have those rights restored, and to ensure that the social elections at the Autonomous Port of Abidjan were held immediately and to keep it informed of the outcome thereof. (See 307th Report, paras. 23-25.) In a communication dated 23 January 1998, the Government explains that the workers dismissed at Irho-Lamé have not appealed to the courts to have their rights restored and that it considers the case to be closed. The Committee notes this information with regret and insists that the Government take the necessary measures to ensure that the workers concerned are reinstated if they so desire. As regards the social elections at the Autonomous Port of Abidjan, the Government repeats the information provided previously whereby the first-level trade unions consider it necessary to draw up a dockers' collective agreement before considering social elections, which was confirmed by six of the seven first-level trade unions attending a meeting held on 21 January 1998 at the premises of the Trade Union of Dockers of the Autonomous Port of Abidjan (SEMPA). The Committee again requests the Government to do all it can to ensure that social elections are held as soon as possible in the Autonomous Port of Abidjan and to make sure that the first-level organizations affiliated to the trade union confederation Dignité are able to participate in them. It once again asks the Government to keep it informed of the outcome of these elections.

Case No. 1918 (Croatia)

18. At its June 1997 meeting, having considered allegations concerning a dispute relating to the leadership of the Confederation of Independent Trade Unions of Croatia (CITUC) and obstacles to the registration of this organization, the Committee requested the Government to submit further information with respect to the jurisdiction of the Administrative Court regarding the leadership dispute and the refusal to register, to keep it informed of the status of the proceedings before the Administrative Court and to forward a copy of the Court's decision as soon as it is handed down (see 307th Report, para. 252). In a communication dated 7 November 1997, the Government sent information relating to the jurisdiction of the Administrative Court and explained that this Court has not yet handed down its sentence in respect of the appeal lodged against the decision of the Ministry of Labour and Social Welfare concerning the refusal of the CITUC's request for registration. The Government also stated that it has transmitted the Committee's recommendation to the Administrative Court. The Committee notes this information. The Committee expresses the hope that this process will shortly be concluded and requests the Government to send it a copy of the sentence as soon as it is handed down.

Cases Nos. 1512 and 1539 (Guatemala)

19. At its November 1997 meeting, the Committee asked the Government to keep it informed periodically of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-1994) (see 308th Report, para. 394(b)). In communications dated 28 January and 26 February 1998, the Government indicates that the Commission will pursue its work for a period of six months and will submit a report which will be transmitted to the Committee. The Committee notes this information and awaits receipt of the report.

Case No. 1890 (India)

20. At its meeting in June 1997, the Committee requested the Government: to keep it informed of the outcome of the request filed with the Industrial Tribunal for approval of the dismissal of Mr. L. Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), and to ensure that he is reinstated in his post, if he so desires; to take appropriate steps to ensure that the ongoing inquiries held by the Beach Resort against the 15 FABREU members who went on strike are dropped; to repeal the decision declaring the hotel industry a public utility service; to take appropriate conciliatory measures to obtain the management's recognition of FABREU for collective bargaining purposes (see 307th Report, para. 376).

21. In its communication of 6 February 1998, the Government indicates that the dispute concerning Mr. Malwankar has been referred to the Industrial Tribunal for adjudication, but that it has been delayed because Mr. Malwankar has sought seven adjournments. While awaiting the award, the Government has assured that a decision in favour of Mr. Malwankar will be enforced. As concerns the 15 FABREU members who were the subject of management inquiries, the Government indicates that seven are under suspension pending inquiry and are being paid subsistence allowances. In these circumstances, the conciliation machinery cannot intervene as it does not constitute an industrial dispute. Transfer orders were issued with respect to the other eight members which they have refused. These members have raised an industrial dispute on this question and requested the withdrawal of the transfer orders. The report of the conciliation failure has been received by the Government and further action will follow. In the meantime, the Labour Commissioner called the union representatives for discussions in order to explore the possibility for an amicable settlement. The proposal made by the Commissioner that they take up their changed posting and then request to be transferred back to their original posting so that the Commissioner could take the matter up again with the employer was rejected. While demanding the total implementation of the Committee's recommendation, the union indicated that it was prepared to undertake joint discussions with the employers.

22. The Government also indicates that the declaration of an industry as a public utility service is at the discretion of the appropriate government. While the Government of Goa used this discretion in the interest of peace and harmony in tourism which is a key industry for the State, it should be noted that the declaration of an industry as a public utility service does not mean that strike is prohibited in this industry. The only restriction concerning strikes in such industries is that 14 days' strike notice must be given. Finally, as concerns the question of recognition of FABREU for collective bargaining purposes, the Government indicates that the Labour Commissioner discussed the matter with the management which indicated that it has recognized the Fort Aguada Association because it is the majority union. The Government adds that FABREU nevertheless may still raise disputes with the Labour Department.

23. The Committee takes due note of this information. It requests the Government to continue to keep it informed of the outcome of the proceedings concerning the dismissal of Mr. Malwankar and, given the Committee's conclusions in its previous examination of this case that Mr. Malwankar was dismissed on account of his trade union status and activities (see 307th Report, para. 369), it urges the Government once again to take the necessary steps to have him reinstated in his post if he so desires. As concerns the management inquiries in respect of 15 FABREU members, the Committee, recalling its previous conclusions that these inquiries and transfer orders constituted anti-union discrimination (see 307th Report, para. 372), requests the Government to take the appropriate steps to ensure that they are dropped. As concerns the recognition of FABREU as collective bargaining agent, the Committee recalls its previous conclusions based on the information provided by both the Government and the complainant that FABREU was the most representative organization at the Fort Aguada Beach Resort. The Committee must therefore once again urge the Government to continue to take any appropriate measures to obtain the employer's recognition of FABREU for collective bargaining purposes and to keep it informed of any progress made in this regard.

Case No. 1920 (Lebanon)

24. At its meeting in November 1997, the Committee requested the Government to indicate whether the contested results of the elections of the officials of the General Labour Confederation of Lebanon (CGTL) on 24 April 1997 was currently the subject of judicial recourse and to keep it informed of the results of any such proceedings. Furthermore, as concerns the arrest of trade union leaders Mr. Abou-Rizk and Mr. Yasser Nehmi and their subsequent prosecution, the Committee urged the Government to do everything in its power to ensure that the charges brought against them were withdrawn immediately. (See 308th Report, para. 525.)

25. In a communication dated 9 January 1998, the Government indicated that the Beirut Court had rejected, for error in form, the appeal to annul the CGTL elections. The appeal was considered not receivable for non-conformity with the law since the executive board of the complainant union had not introduced legal action.

26. The Committee notes this information. It observes that the Government has not provided any information on the situation of Mr. Abou-Rizk or Mr. Yasser Nehmi. The Committee is obliged once again to express its deep concern regarding the prosecution undertaken against these two trade union leaders, in particular given that the charges appear to be directly linked to the fact that they submitted a complaint to the ILO. The Committee urges the Government to do everything in its power to ensure that the charges are immediately withdrawn. It requests the Government to keep it informed of any developments in this situation.

Case No. 1793 (Nigeria)

27. During its examination of this case in November 1997, the Committee found itself obliged to deplore the fact that, for nearly three years, the Government has consistently evaded responding to the urgent calls for a mission. The Committee added that a new complaint had been submitted against the Government of Nigeria alleging the adoption of further anti-union decrees and detention of unionists (Case No. 1935). The Committee therefore reiterated in the strongest possible terms the calls which have been made to the Government to indicate, as a matter of urgency, the earliest dates in which a mission to examine the trade union situation in Nigeria could be received. (See 308th Report, paras. 51-53.)

28. In a communication dated 4 February 1998, the Government indicated that it would transmit its reply concerning this case on 20 February 1998. On 20 February 1998, the Government sent a letter indicating that it would reply on 24 February 1998. No further information has since been received from the Government.

29. In these circumstances, the Committee must express its outrage at the manner in which the Government has repeatedly ignored not only its own calls for a mission to examine the trade union rights situation in the country and to visit trade unionists detained without trial, at least one of whom has been detained for over three years, but also the additional urgent calls emanating directly from the Governing Body in this respect. The levity displayed by the Government in this respect can only be viewed by the Committee with the greatest concern. Given the persistent lack of cooperation on the part of the Government in this case, the Committee considers that other types of action should be taken in order to enable some progress in the very serious matters raised in this case.

Case No. 1698 (New Zealand)

30. At its meeting in June 1997, the Committee noted information provided by the Government concerning a coalition agreement to introduce the concept of "fair bargaining" into the Employment Contracts Act (ECA) and requested the Government to keep it informed of any progress made in this regard. Furthermore, the Committee reiterated its previous conclusions concerning section 63(e) of the ECA and recalled that the determination of the bargaining level was a matter to be left to the discretion of the parties and that legislation should not constitute an obstacle to collective bargaining at the industry level. It reiterated therefore that workers and their organizations should be able to call for industrial action in support of multi-employer contracts and requested the Government to keep it informed of any measures taken in the future to amend section 63(e) in this respect.

31. In a communication dated 28 October 1997, the Government indicated that it was continuing to work through the process of identifying issues relating to bargaining, particularly recognition of the employees' representative, which have been raised by the experience with the ECA since its introduction. Options for addressing these issues will then be developed and considered by the Government before any legislation is considered. As concerns section 63(e), the Government indicates that no measures are being considered and reaffirms that it is a matter of government policy not to allow the use of strikes or lockouts to secure a multi-employer collective employment contract. Multi-employer contracts should be agreed as a result of willing employer-employee bargaining, not by enforced industrial action. Finally, the Government provided information on recent cases concerning the application of the ECA.

32. The Committee takes note of this information. It requests the Government to keep it informed of any progress made in introducing the concept of "fair bargaining" into the legislation. As concerns section 63(e) of the ECA, while reaffirming the principle that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 1994, para. 844) the Committee considers that this question is distinct from that of the legitimacy of strike action in support of multi-employer contracts. The Committee cannot share the views expressed by the Government that the voluntary nature of collective bargaining means that industrial action cannot be used to support legitimate workers' demands. It therefore once again recalls its conclusions in this case that provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike (see 292nd Report, para. 737) and again requests the Government to amend section 63(e) and to keep it informed of any measures envisaged in this respect.

Case No. 1891 (Romania)

33. At its November 1997 meeting (see 308th Report, paras. 72-74), the Committee had asked the Government to send it a copy of the new law on the settlement of labour disputes once it had been adopted and to indicate whether the human rights committee set up by the Ministry of the Interior had been charged with investigating the particular allegations raised in the case, and to keep it informed regarding the results of such investigations. In a communication dated 21 January 1998, the Government states, once again, that the draft law on the settlement of labour disputes was submitted to the social partners and that the text will be sent to the ILO once it is adopted. Furthermore, it indicates that the particular allegations raised in this case were not referred to the human rights committee but that any citizen who considers that his rights have been infringed by police action may bring a complaint before the committee which will refer it to the military prosecutor's office if there has been a breach of the law. The Committee notes this information and once again expresses the hope that a new law on the settlement of labour disputes in accordance with the principles of freedom of association will be adopted very soon and that the Government will send it a copy as soon as possible.

Case No. 1618 (United Kingdom)

34. At its meeting in November 1997, the Committee urged the Government to give consideration to the incorporation of an express protection in the legislation against blacklisting. (See 308th Report, paras. 75-77.)

35. In a communication dated 9 February 1998, the Government states that, while it is not yet in a position to know whether blacklisting will definitely be covered, it is intending to publish a White Paper on fairness at work, and principally on trade union recognition, in the first part of this year. The White Paper will set out the Government's plans for achieving decent minimum standards at work, while maintaining a flexible labour market and improving competitiveness. The Government adds that it is keen to hear from trade unions, employers' organizations and others to ensure the White Paper takes account of their views.

36. The Committee takes note of this information. It requests the Government to keep it informed of any progress made in providing for an express protection in the legislation against blacklisting or other forms of discrimination based on past trade union membership or activities.

Case No. 1581 (Thailand)

37. At its meeting in November 1997, the Committee once again requested the Government to keep it informed of the progress made in adopting the State Enterprise Labour Relations Bill and expressed its hope that the Bill, in its final form, would be in full conformity with freedom of association principles (see 308th Report, paras. 78-80). In a communication dated 5 February 1998, the Government has indicated that the original Bill which was passed by the House of Representatives was subsequently substantially revised by the Senate. As a result, the House has disapproved the modified Bill which, inter alia, provides for a minimum requirement of 35 per cent membership for the formation of a union in a state enterprise, limits the term of office of the union's president, provides that general meetings shall only be held on public holidays and does not recognize the right to form a federation or to affiliate with a private sector federation. According to the Government, if the House resolves to reaffirm the original Bill or the Bill subsequently amended by a Joint Ad Hoc Committee consisting of members of the House and Senators, such Bill will have been deemed to have been approved by Parliament.

38. The Committee notes this information. It expresses its deep concern that the modifications made to the Bill by the Senate would result in a deterioration of trade union rights for state enterprise unions even beyond the existing Bill which was criticized in 1991 for violating the principles of freedom of association (see 279th Report, paras. 441-482). The Committee urges that all necessary measures be taken so that the Bill, in its final form, will be in conformity with the principles of freedom of association and requests the Government to keep it informed of any progress made in this regard and to provide a copy of the Bill once it has been adopted.

Case No. 1856 (Uruguay)

39. At its meeting in March 1996, the Committee formulated the following recommendation on this case: "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). At its meeting in November 1996, the Committee took note of the Government's statements according to which the General Inspectorate for Labour and Social Security was beginning an investigation into the allegations (see 305th Report, paras. 64 and 65). Subsequently, in a communication of 5 March 1997, the Government stated that the investigation was at the evidence-gathering stage, i.e. was in the process of receiving and collecting the evidence submitted to it by the parties involved, mainly in the form of testimonial evidence, and that it had not yet reached any definitive conclusions on the matter. The Government added that when the administrative procedure reached its final stage, it would inform the Committee of its findings.

40. At its meeting in November 1997 (see 308th Report, paras. 81-83), the Committee took note of this information and, since the inquiry had already taken one year, expressed the hope that the administrative authority would expedite the matter and requested the Government to take steps to that end. The Committee awaited the final outcome of the inquiry.

41. In its communication of 21 January 1998, the Government states that during the evidence- gathering stage of the inquiry into the dismissals in question, one purpose of which is to allow the parties to substantiate their respective positions, only the defendant company, Perses SA, had presented itself, the Peres SA Staff Association having failed to do so. The Government also states that the information collected during the proceedings is insufficient to allow definitive conclusions to be reached on the content of the complaint, and the General Inspectorate for Labour and Social Security was therefore withdrawing the file.

42. The Committee takes note of this information and regrets that the Peres SA Staff Association did not present itself at the evidence-gathering stage of the inquiry requested by the Committee. Under these circumstances, given that the allegations date back to April 1995 and taking into account the lack of interest shown in the case by the complainant organization, the Committee will not pursue its examination of the allegations.

Case No. 1886 (Uruguay)

43. At its meeting in May 1997 the Committee, when examining allegations of anti-union discrimination arising from the nomination of only non-union members to executive positions within Lloyds Bank, requested the Government to send the text of the Administrative Court's ruling on the matter as soon as it was handed down (see 307th Report, para. 470(c)). In a communication of 23 January 1998, the Government states that no final ruling on the matter has been handed down, since the proceedings are still at the submissions stage during which the plaintiff (Lloyds Bank Limited) presents its case, and the State Prosecutor will have to go to the Administrative Court at a later date. Finally, the case will be examined by the Judges of the Court who will then give a ruling. The Government states that it will inform the Committee of the outcome of the proceedings. The Committee takes note of this information. It expresses the hope that these proceedings, which began about a year and eight months ago (in June 1996) will be concluded shortly and requests the Government to send it a copy of the ruling as soon as it is handed down.

44. Finally, as regards Cases Nos. 1719 (Nicaragua), 1796 (Peru), 1809 (Kenya), 1819 (China), 1824 (El Salvador), 1826 (Philippines), 1834 (Kazakhstan), 1837 (Argentina), 1849 (Belarus), 1850 (Congo), 1854 (India), 1863 (Guinea), 1864 (Paraguay), 1870 (Congo), 1877 (Morocco), 1883 (Kenya), 1894 (Mauritania), 1903 (Pakistan), 1921 (Niger) and 1926 (Peru), 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. In addition, the Committee has just received information concerning Cases Nos. 1785 (Poland), 1813 and 1878 (Peru), 1895 (Venezuela), 1907 (Mexico) and 1908 (Ethiopia) which it will examine at its next session.