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 4, 5 and 17 March 1999, under the chairmanship of Professor Max Rood.

2. The members of Argentine, British, Mexican and Panamanian nationality were not present during the examination of the cases relating to Argentina (Case No. 1947), the United Kingdom/Bermuda (Case No. 1959), Mexico (Case No. 1927) and Panama (Case No. 1967).

3. Currently, there are 77 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 21 cases on the merits, reaching definitive conclusions in 13 cases and interim conclusions in eight cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1995 (Cameroon), 1997 (Brazil), 1998 (Bangladesh), 1999 (Canada/Saskatchewan), 2001 (Ukraine), 2003 (Peru), 2004 (Peru), 2005 (Central African Republic), 2006 (Pakistan), 2007 (Bolivia), 2008 (Guatemala), 2009 (Mauritius), 2010 (Ecuador), 2011 (Estonia) and 2012 (Russian Federation) because it is awaiting information and observations from the governments concerned. All these cases relate to complaints or representations 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. 1851 (Djibouti), 1922 (Djibouti), 1961 (Cuba), 1974 (Mexico), 1976 (Zambia), 1978 (Gabon), 1980 (Luxembourg), 1990 (Mexico), 1991 (Japan) and 1993 (Venezuela). In Cases Nos. 1974 and 1990 (Mexico), the Government has stated that its observations will be sent in the near future. In Case No. 1931 (Panama), the Government has requested the technical assistance of the Office. The Committee requests it to provide a response to the issues raised in the case so that the technical assistance requested can be based on the definitive conclusions and recommendations of the Committee.

Observations requested from complainants

6. In Case No. 1929 (France/French Guiana) the Committee has still not received the complainant's comments. Taking into consideration the considerable amount of time which has elapsed since it formulated its request, the Committee decides to close this case.

Partial information received from governments

7. In Cases Nos. 1835 (Czech Republic), 1865 (Republic of Korea), 1953 (Argentina), 1965 (Panama) and 1986 (Venezuela), 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. 1773 (Indonesia), 1888 (Ethiopia), 1930 (China), 1934 (Cambodia), 1943 (Canada/Ontario), 1949 (Bahrain), 1951 (Canada/Ontario), 1960 (Guatemala), 1970 (Guatemala), 1971 (Denmark), 1972 (Poland), 1975 (Canada/Ontario), 1979 (Peru), 1984 (Costa Rica), 1985 (Canada), 1989 (Bulgaria), 1992 (Brazil), 1994 (Senegal), 1996 (Uganda), 2000 (Morocco) and 2002 (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

9. As regards Cases Nos. 1939 (Argentina), 1963 (Australia) and 1988 (Comoros), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the cases, it has not received the observations of the governments concerned or has only received partial observations. 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 even if their complete 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.

Irreceivable complaint

10. On 26 November 1998 and 19 January 1999, the trade union New Wood addressed to the Chairman of the Committee communications in which it alleged infringements of trade union rights by the United Nations in Geneva. According to its procedure, the Committee can only examine complaints presented against a State. In these circumstances, the Committee is obliged to conclude that the communications in question are irreceivable and therefore is not in a position to examine the substance.

Transmission of cases to the Committee of Experts

11. 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: Colombia (Case No. 1916), Nigeria (Cases Nos. 1793 and 1935), Panama (Case No. 1967), Peru (Case No. 1906), Turkey (Case No. 1981).

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

Case No. 1867 (Argentina)

12. The Committee examined this case at its June 1998 meeting (see 310th Report, paras. 68 to 89) and requested the Government to take the necessary steps for the reinstatement of the trade union official, Mr. Rojo, in his previous post, and if this is not possible because of the time which has elapsed, to ensure that he is fully compensated.

13. In a communication of 22 October 1998, the Government stated that it has undertaken the required formalities by notifying the Province of Salta of the recommendation formulated by the Committee.

14. In a communication of October 1998, the State Workers' Association (ATE) notes that having learned of the Committee's recommendation, Mr. Miguel Hugo Rojo presented a photocopy to the Administrative Court of First Instance of the city of Salta, in the Province of Salta, of the Republic of Argentina. In this administrative action which is actually at the evidentiary stage, the Province of Salta, through its legal representative, denied or refused to recognize the existence of the Committee's recommendations, and asked to have the document removed from the file. According to the complainant, this indicates that the Province of Salta refuses to recognize the recommendations of the Committee, the proof being that to date, Miguel Hugo Rojo has not been reinstated in his post, nor has he been paid the salary owing.

15. The Committee takes note of this information. The Committee deeply regrets that Mr. Rojo has not yet been reinstated in his former post nor has he been compensated fully. Under the circumstances, the Committee reiterates its former recommendation and again requests the Government to take the necessary steps immediately to implement the recommendation adopted in June 1998.

Case No. 1873 (Barbados)

16. The Committee last examined this case at its November 1998 meeting (see 311th Report, paras. 97-110). The Committee had requested the Government to proceed to an objective verification as to whether the National Union of Public Sector Workers (NUPW) represented the majority of the workers in the public sector in Barbados and to send it the result of this verification.

17. In a communication dated 4 January 1999, the Government confirms that the NUPW is in fact the largest trade union which represents public servants in Barbados. However, as far as representativity is concerned, the Government indicates that the NUPW has a smaller membership than the other public sector unions which are represented by the Congress of Trade Unions and Staff Associations of Barbados (CTUSAB). The Government indicates that while CTUSAB is not an accredited trade union but rather an umbrella body, it nonetheless conducts negotiations on behalf of its affiliate members such as teachers, the Barbados Workers' Union (BWU) and nurses, as well as the "uniformed and disciplined services" which includes police, prisons and fire officers. Thus, the Government explains that the CTUSAB is more representative of the public servants than the NUPW and it is through this representation that the Government concluded its settlement on the new wage plan after bargaining in good faith. The Committee takes due note of this information.

Case No. 1509 (Brazil)

18. The Committee examined this case which concerns the murder of the trade union leader Valdicio Barbosa dos Santos at its meeting of November 1998 (see 311th Report, para. 21) and requested the Government to keep it informed of the final result of the legal proceedings concerning this case. In a communication of 25 January 1999, the Government states that the legal proceedings in question are still pending before the tribunal of the State of Espiritu Santo (in appeal from the criminal court) following an appeal lodged by the accused Mr. Romualdo Eustaquio Luz Faria. Furthermore, the Government indicates that the other accused, Mr. Gilberto Marcal da Rocha has not yet been located, which explains why the sentence has not been served to him. The Committee takes note of this information and requests the Government to keep it informed of the final result of the legal proceedings.

Case No. 1916 (Colombia)

19. In its previous examination of this case, the Committee urged the Government to take all the necessary measures to reinstate in their posts the trade union leaders, members and workers who were dismissed for organizing a strike in 1993 at the "Medellín Municipal Enterprises" (in the refuse collection sector) and, if this was not possible, to ensure that they received full compensation. The Committee also requested the Government to ensure that in future any declaration on the legal status of strikes (declaration of illegality) would be made by an independent body and not by the administrative authority, and to amend those provisions in the Labour Code which prohibit strikes in a wide range of services which cannot be considered essential in the strict sense of the term (see the 309th Report of the Committee, para. 105).

20. In its communications of 10 December 1998 and 15 January 1999, the Government provided a copy of a ruling given on 9 March 1998 by the Supreme Court of Justice stating that in June 1993 the majority of the workers had returned to work, while the four complainants continued their stoppage after it had been declared illegal and compensation for wrongful dismissal is therefore inappropriate. The Government adds that, once judicial decisions are handed down, the Government of Colombia, or of any other State based on the rule of law, has no choice but to comply, in view of the separation of powers. The workers now appealing to this international body availed themselves of all the available means of pursuing their claims. Although the judicial decisions which they obtained were not in their favour, they constitute a matter adjudged and must be respected by all.

21. At the same time, the Government points out that the case concerns a work stoppage, which is legally and constitutionally a different concept from that of a strike. This was expressly indicated by the persons responsible for formulating the complaint, who stated that at their General Assembly of 7 February 1993 they agreed to declare themselves "in permanent session", i.e. they never voted for strike action. It should be emphasized that the workers at no time voted for a strike but employed the union's own concept of a "permanent assembly", which in practice means an illegal stoppage and which affected refuse collection in the country's second largest city. Section 56 of the Political Constitution of Colombia guarantees the right to strike except in essential public services. The legislators developed this constitutional principle and specified those activities regarded as constituting essential public services in order to safeguard in full the right to strike in those occupations which by nature are not essential. Although currently there are laws which expressly define essential public services (for example, Act No. 142 of 1994 concerning public services for households, including sanitation), at the time when Resolution No. 00414 of 18 February 1993 was adopted, the principles embodied in it were already applied, although the relevant provisions of the 1991 Political Constitution had not been developed, and are becoming well established in law. This was the ruling given by the Council of State on 26 October 1994.

22. The Government states that, given the existence of judicial review of the administrative procedure for declaring a strike illegal (see (e)) within which a decision is given by the highest administrative court, the Council of State, and must be respected by the parties involved and by the Government, the following considerations should be borne in mind: the procedure for a declaration of illegality is not arbitrary. It comprises the following: (a) the only authority competent to register a stoppage or strike is the labour inspector who reports on the facts observed at the workplace and invites representatives of the employer and of the workers to put their respective cases in the administrative proceedings. The absence of any wish on the part of the parties to defend their claims is not a reason for halting the administrative proceedings; (b) the assessment of the facts is the responsibility of the Technical Sub-Directorate for Collective Affairs which draws up a draft resolution for signature by the Minister; (c) the decision is the sole responsibility of the Minister, after the case has been examined by the Legal Office (Advisory Office of Settlement); (d) the administrative decision is reconsidered; (e) the administrative decision of the Minister declaring the strike or stoppage illegal can be contested before the judicial authority. This system of supervision protects the interested parties from possible abuses of power by the Minister and from the possible illegality of the Minister's decision, and has the same effect in the Colombian justice system as would be had by the suggestion of the Committee on Freedom of Association that such decisions are a matter for judges rather than the administrative authorities. The solution provided by the national legal system takes into consideration the need for flexible decisions which will implement cogent instruments capable of deterring violations with a view to ensuring that a group of workers acting in violation of the law ceases to do so; this is a task for the administrative authorities, although it must be possible to contest their decisions from the legal point of view, and for this purpose workers have available to them the possibility of legal action.

23. The Government indicates that once a stoppage has been declared illegal, the employer is entitled to dismiss the workers involved, taking into account their degree of involvement. The employer's decision can be contested before labour courts which can order the reinstatement of a worker who has been unjustly or illegally dismissed.

24. As regards the definition of essential public services, in which according to the Colombian Constitution strikes are prohibited (section 56), the Government does not share the concern of the Committee on Freedom of Association with regard to the "wide range of services" in which strikes are restricted. Under national law, essential public services are those that have been expressly defined as such by the legislators and, whenever the term essential is applied, the Constitutional Court can review a legislative decision with a view to ascertaining whether or not the activity in question is really an essential public service (Ruling C-472 of 27 October 1994). According to the Ruling in question, a given public service may be deemed to be essential if it contributes directly to the protection of property or the fulfilment of needs or the expression of values connected with the respect, safeguarding, exercise and effectiveness of fundamental rights and freedoms. The criterion of the Constitutional Court is the same as that used by the Committee of Experts in its 1983 General Survey (paragraphs 213 and 214), namely, that only those services "whose interruption would endanger the life, personal safety or health of the whole or part of the population" can be considered essential.

25. The activities which the legislators have defined as essential public services have arisen in response to the particular conditions prevailing in Colombia; there is not, as was suggested, any discretionary element in their definition. In those cases where, because of the essential nature of the public services in question, strikes are prohibited under the Constitution, provision is made, as a compensatory guarantee, for arbitration to resolve disputes. It follows that national legislation is in conformity with the interpretations of the Committee of Experts with regard to the rights of association and negotiation embodied in ILO Conventions Nos. 87 and 98.

26. The Committee notes that the Supreme Court of Justice did not order reinstatement or compensation for wrongful dismissal in the case of the four complainants who had taken part in and continued a work stoppage (the subject of the complaint in Case No. 1916) which had been declared illegal. The Committee observes that the decision of the Supreme Court of Justice is based on legislation currently in force, which empowers the Minister of Labour to declare a strike or work stoppage illegal, and that the declaration of illegality of the strike in the present case is based on the prohibition of strikes in the public services and specifically in hygiene and sanitation services (section 430 of the Labour Code). In this regard, the Committee observes that, according to the documents available to it, the stoppage began on 7 February 1993 and was declared illegal on 18 February and therefore does not rule out the possibility that the interruption in the refuse collection service for 11 days might have endangered the health of the population, and that this might have given rise to certain sanctions. However, although, as the Government states, the stoppage considered in the present case did not follow a strike vote, the Committee recalls that responsibility for declaring the strike (or stoppage) illegal should not lie with the Government but with an independent body which has the confidence of the parties involved (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 522), and that the legislation prohibits strikes in a very wide range of services which are not necessarily essential (see the 309th Report of the Committee, para. 101). This being the case, the Committee draws these legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, which for many years has criticized the provisions of legislation which prohibit strikes in certain non-essential services.

Case No. 1925 (Colombia)

27. At its March 1998 meeting, the Committee formulated the following recommendations concerning the allegations that are still pending (see 309th Report, para. 119):

(a) The Committee requests the Government to transmit the decision concerning the fine imposed upon the company Avianca-Sam-Helicol for having applied a status of "not unionized" to the workers and to confirm that this type of anti-union discrimination practice has ceased. It further requests the Government to keep it informed of the investigations into violations of section 140 of the Labour Code and hopes that these investigations will be concluded very soon.

(b) As regards the dismissal of trade union officers from the union's subsidiary office at Cundinamarca (Euclides Arandia, José Angel Cupita, Rubén Darío Leal, José Córdoba and Rosalía Delgado), of union officers at the union's Barranquilla section (Luis Cruz and Gabriel San Juan) and of 16 union members from the operations area at Eldorado Airport in Bogotá, the Committee requests the Government to take all steps forthwith to begin an investigation into the matter and, if it is found that the union officers and members in question were dismissed on grounds of their trade union activities, because of their position as union officers or members, or for anti-union motives, to reinstate them in their posts. The Committee requests the Government to keep it informed of the outcome of this investigation.

(c) As regards the failure after 15 December 1996 to deduct trade union dues from the wages of 280 union members on behalf of the complainant, and in some cases the illegal withholding by the company of dues that had been deducted, the Committee, noting the absence of any comments by the Government on this allegation, emphasizes that in considering similar allegations, it has previously recalled that non-payment of union dues can result in serious financial difficulties for trade union organizations and requests the Government to ensure that the company guarantees the deduction and transfer of union dues in the manner provided under section 400 of the substantive Labour Code. The Committee requests the Government to keep it informed in this connection.

(d) As regards the allegations concerning the suspension of a permanent trade union licence granted to the union's subsidiary office at Cundinamarca in accordance with a collective agreement, and the withdrawal on 7 November 1995 of recognition as SINTRAVA representatives from members of the union's National Council, the Committee requests the Government to take steps to ensure that an investigation is conducted into the matter and, if the allegations are found to be true, to take any necessary steps to ensure that the relevant terms of the collective agreement are enforced. The Committee requests the Government to keep it informed in this connection.

28. In its communication of 15 January 1999, the Government forwarded its observations concerning these matters. The enterprise AVIANCA also forwarded information. In this respect, since AVIANCA is not the complainant in the present case, the Office asked the Government if it would like the information provided by AVIANCA to be considered as part of the Government's reply to the Committee. Under these circumstances, the Committee will adjourn its examination of the case until it receives the Government's response.

Case No. 1954 (Côte d'Ivoire)

29. During its last examination of the case at its session of November 1998, the Committee had requested the Government to take the necessary measures to ensure the reinstatement in their posts of 300 workers and 14 staff delegates from the Abidjan Ship Repair and Industrial Work Enterprise (CARENA) following strike movements started in March 1997; as regards the industrial dispute at the CARENA enterprise, the Committee had also requested the Government to resume negotiations on this matter and to keep it informed of decisions taken by the industrial advisory board made up of workers and employers involved in this industrial dispute under the supervision of experts from the Ministry of Employment (see 311th Report, para. 411(a) and (d)). Finally, the Committee had requested the Government to undertake inquiries regarding the various interventions by the police against the strikers who had participated in the strike movements of March 1997 and with regard to the attack on and occupation of Dignité's premises for a number of days in February 1998 (see 311th Report, para. 411(b) and (c)).

30. In a communication dated 5 February 1999, the Government reiterates its previous comments on the events of March 1997 according to which Dignité staged an illegal strike, thus violating the agreement which the parties had reached, as well as violating the Labour Code and Decree No. 96-208 of 7 March 1996 on the conciliation procedure in the case of collective labour disputes. The Government declares that the Minister of Employment was right in declaring illegal the strike of 5 March 1997; in this context and taking into consideration the separation of power, the Government indicates that it cannot interfere to obtain the reinstatement of the workers dismissed following the strikes. In any case, the Government recalls that the workers in question can lodge a complaint with the competent national tribunals in order to have their rights reinstated. While taking note of this information, the Committee can only recall that the responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties (see 311th Report, para. 405); in this case, the declaration of the strike as illegal having been used by the employer to dismiss in an abusive way a considerable number of workers, the Committee deplores this violation of freedom of association and urges once again the Government to take all necessary measures in order to reinstate in their posts, if they so wish, all workers and staff delegates who were victims of anti-union discrimination. In addition, it requests the Government to resume negotiations with regard to the industrial dispute at the CARENA enterprise and to keep it informed of the decisions taken by the industrial advisory board which was set up in this context.

31. As regards the various interventions by the police, the Government states once again that they were totally justified since they were dealing with matters of a very serious nature where public order could have been threatened; in this respect, the Government declares that as far as the events of March 1997 are concerned, not only had the workers used strike picketing to obstruct public streets but they had also threatened the installations of the enterprise and particularly the ships under construction. Concerning the protest march of 4 February 1998, the Government declares that Dignité never obtained the prior authorization from the Ministry of the Interior, in violation of Act No. 92-464 on the repression of certain forms of violence; this led to the intervention of national police units in order to prevent matters getting out of hand and disturbing public order. While taking note of this information, the Committee deplores the fact that the Government provides no new information and thus can only reiterate its previous conclusions according to which the use of police forces constituted an infringement of the trade union rights of the workers concerned. Finally, the Committee takes note of the fact that the Government paid an amount of 100 million francs CFA to the trade union organizations Dignité and Federation of Autonomous Trade Unions of Côte d'Ivoire (FESACI) in order for them to rebuild their headquarters since the labour exchange premises are entirely occupied by the General Union of Workers of Côte d'Ivoire (UGTCI).

Cases Nos. 1512 and 1539 (Guatemala)

32. At its meetings in November 1997 and March 1998, the Committee requested the Government to keep it informed 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 (1990-94) (see 308th Report, para. 394(b), and 309th Report, para. 19). In its meeting in November 1998 the Committee noted the Government's reply in which it indicated that it would communicate a copy of the report of the commission; the Committee continued to await receipt of the report.

33. In a communication dated 29 January 1999, the Government sent a copy of a statement of the Commission on Historical Clarification according to which it indicated that it would finish its work in the course of January 1999 and that, at that stage, its report would be submitted to the parties and the United Nations Secretary-General who would render it public; it is the commission in question that will determine the date of the submission which should be during the month of February 1999. The Committee continues to await receipt of the report.

Case No. 1876 (Guatemala)

34. In its previous examination of this case (November 1998), the Committee noted in respect of the inquiries concerning the alleged rape of trade unionist Vilma Cristina González and into the alleged detention of the trade unionists Eswin Rocael Ruiz Zacarías, Edwin Tulio Enriquez Garcia and Belarmino González de León, the Government's indication that these persons -- who are pursuing their activities as usual -- were still not collaborating with the authorities in the inquiries which is why no progress has been made. The Committee pointed out that it would only pursue its examination of these allegations if the complainant sent additional information on the acts alleged and on their lack of collaboration in the inquiries (see 311th Report, para. 47). The Committee notes that the complainant has not sent the additional information requested and therefore considers, as it had announced previously, that this aspect of the case does not call for further examination. Furthermore, as concerns the allegations of acts of anti-union discrimination in the El Salto farm, the Committee requested the Government to carry out an inquiry to reply specifically to the allegations of discrimination and to take measures for the reinstatement of those dismissed in their jobs if it is confirmed that they were dismissed for their trade union activities (see 311th Report, para. 50). In its communication dated 29 January 1999, the Government stated that the recourse to annul this matter was declared inappropriate on 19 September and none of the parties demonstrated an interest in continuing this route; therefore the file was closed. The Committee takes note of this information.

Case No. 1936 (Guatemala)

35. In its previous examination of the case (November 1998), the Committee requested the Government to keep it informed of the outcome of two criminal proceedings, the first one concerning the theft of an item of moveable property belonging to the National Electrification Institute lodged against members of this Institute's trade union, and the second concerning an individual action lodged by the administrative manager of the Institute against a group of workers (see 311th Report, para. 51). In a communication dated 29 January 1999, the Government indicated that the moveable property referred to in the first criminal proceedings had been returned by the trade unionists to the Institute; the administrative manager of the Institute considered the case settled. As regards the second criminal proceedings, the Government indicated that it was an individual action lodged personally by the manager and that the public prosecutor had requested the judicial authority to end the proceedings. The Committee takes note of this information.

Case No. 1883 (Kenya)

36. The Committee last examined this case at its November 1997 meeting (see 308th Report, paras. 45 to 47). The Committee had requested the Government to transmit a copy of the decision concerning the deregistration of the Kenya Wildlife and Allied Workers' Union which was still pending in the High Court.

37. In a communication dated 6 October 1998, the Government transmits a copy of the court proceedings of 7 October 1997 in which the High Court dismissed the application of the union. It appears from the decision that the Court rejected the application of the union on the basis that a recourse in mandamus was not the proper remedy in this case and that the complainant should have exhausted the relevant machinery rather than going for what the counsel of the union saw as a quick remedy to the problem. As stated by the Government, it appears from the decision that the union has the possibility to pursue this matter further. In this respect, the Committee requests the Government to keep it informed of any other legal proceedings the union might decide to take as well as to inform it of the outcome of such proceedings.

Case No. 1877 (Morocco)

38. At its meeting in June 1998, the Committee had requested the Government to keep it informed of developments with regard to the judicial proceedings instituted by the workers of the SOMADIR company in Casablanca and El Jadidale who had been dismissed or suspended on account of their legitimate trade union activities (see 310th Report, paras. 27 to 29). In a communication dated 29 October 1998, the Government states that 33 workers have been reinstated in their jobs, that in three cases the parties have settled out of court through conciliation proceedings before the judge and that in three other cases a final decision has been handed down in favour of the dismissed workers, who have received the statutory compensation. It states that seven other cases are pending before the court of appeals while the rest are pending before the court of first instance. While noting this information with interest, the Committee requests the Government to keep it informed of developments with regard to the judicial outcome of this case.

Case No. 1719 (Nicaragua)

39. The Committee last examined this case, which concerns dismissals in the customs sector following a strike in May 1993, during its November 1997 meeting (see 308th Report, paras. 48 to 52). On this occasion, the Committee recalled that it had appealed to the Government, with a view to encouraging a return to harmonious industrial relations, to endeavour to facilitate the reinstatement in their jobs of the UNE union leaders and members dismissed in the customs sector (see 304th Report, paras. 395 to 416).

40. In communications dated 8 January, 23 February and 4 May 1998, the National Union of Employees (UNE) complained that the Government did not comply with the recommendations formulated by the Committee in June 1996 and did not reinstate or compensate the workers dismissed in the customs sector. The complainant insisted on the fact that the workers dismissed following the strike amounted to 144, and amongst them were all the trade union leaders of the unions William Ruiz Martinez, Héroes y Mártires del Sur, Pablo López, Advana El Espino as well as the FETRAP Federation.

41. In communications dated 5 October 1998 and 25 January 1999, the Government states that harmonious industrial relations do exist in the customs sector and indicates that a collective agreement has been reached between the General Directorate of Customs and the Union of Customs Workers, a copy of which is attached.

42. The Committee takes note of this information. The Committee regrets that despite the time elapsed since its recommendations (June 1996), the parties concerned have not been able to reach an agreement on the reinstatement of the workers dismissed following the strike of 1993. The Committee is fully aware of the difficulties with respect to the reinstatement of workers who were dismissed nearly six years ago and therefore urges the Government to take all necessary measures to ensure that the parties concerned do reach an agreement on full compensation for the workers dismissed, in the case that reinstatement could prove impossible.

Case No. 1903 (Pakistan)

43. The Committee last examined this case at its June 1997 meeting (see 307th Report, paras. 39 to 41). The Committee had requested the Government, with respect to the revocation of the decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union, to forward it a copy of the said decision delivered by the Industrial Relations Commission (NIRC) on appeal. Regarding the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee had requested the Government to keep it informed of the status of the labour court proceedings and any further appeal on this matter, and to forward to it a copy of the judgement as soon as it would be rendered.

44. In its communication dated 2 February 1999, the Government forwards a decision of the NIRC of 28 May 1997 which rules that the appeal concerning the revocation of the decision to suspend the Pak China Fertilizer Limited Employees' Union is accepted and that the case is remanded to the lower court and that a decision should be rendered within two months. The decision of the NIRC also mentions that the said union will continue to be suspended until the decision is rendered.

45. While taking note of this decision of 28 May 1997, the Committee observes that the Government had stated in its previous communication that the Registrar of Trade Unions had reinstated the union on 5 April 1997. Therefore, the Committee requests the Government to indicate what is the current status of the union and to confirm that it is able to carry out its activities normally. With regard to the dismissal of Messrs. Hakam Khan and Manzoor Hussain, the Committee urges the Government to indicate the status of the labour court proceedings and to forward it a copy of the relevant judgement as soon as it is rendered.

Case No. 1796 (Peru)

46. At its meeting of June 1998, the Committee had requested the Government to keep it informed of the outcome of the proceedings concerning the dismissals of the trade union leaders Delfín Quispe Saavedra, Dionisio Mejía Ramos and Iván Arias Vildoso.

47. In its communication of 4 February 1999, the Government states that: (1) the proceedings concerning Delfín Quispe Saavedra are still pending and the Government has been awaiting the delivery of the sentence by the Tribunal since 10 December 1998; (2) concerning the case of Dionisio Mejía Ramos, the Division of Constitutional and Social Law of the Supreme Court rejected, on 27 October 1997, the appeal lodged by the complainant and referred it back to the Civil Chamber on 6 March 1998. This proceeding is now closed and has been filed in the archives of the Labour Tribunal; (3) concerning the case of Iván Arias Vildoso, the Government is still awaiting the decision of the Supreme Court in this affair.

48. The Committee takes note of this information. The Committee requests the Government to keep it informed of the final outcome of the proceedings concerning the trade union leaders Delfín Quispe Saavedra and Iván Arias Vildoso.

Case No. 1813 (Peru)

49. At its meeting in June 1998 (see 310th Report, paras. 41 to 43), the Committee requested the Government to keep it informed of the results of the proceedings concerning the death of trade unionists Alipio Chueca and Juan Marco Donayre Cisceros as a result of the shots fired by CORDECALLAO security staff (the Government had stated that three persons had been charged). In its communication of 23 December 1998, the Government states that there was sufficient evidence in the context of the legal proceedings to open a public hearing which began on 3 September 1998 and is still ongoing. The Committee notes this information and requests the Government to keep it informed of the outcome of the proceedings.

Case No. 1944 (Peru)

50. At its meeting of November 1998, the Committee made the following recommendations on the pending allegations (see 311th Report, para. 547):

Recalling that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions, and in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom, the Committee requests the Government:

-- to take the necessary measures to ensure that Mr. Mickey Juán Alvarez Aguirre, who was elected executive secretary of the national executive committee of the FNTPT at the Ordinary National Congress in February 1996 is reinstated in his job without loss of acquired benefits and that he is once again able to exercise his trade union responsibilities rapidly and without impediment. It requests the Government to keep the Committee informed about the issues raised;

-- to take the appropriate measures to ensure that in future restructuring and staff reduction procedures cannot be used to carry out acts of anti-union discrimination;

-- concerning the refusal of the municipality of metropolitan Lima to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Committee trusts that the decision rendered in respect of the appeal made by the Federation of Peruvian Electricity and Energy Workers will reflect the principles of freedom of association and requests the Government to keep it informed of the outcome of the appeal as well as any element which would clarify the situation in respect of the legal requirements for the ISTED to be able to function as a higher professional training centre;

-- with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Committee requests the Government to keep it informed of the results of the appeal lodged by the Federation of Peruvian Electricity and Energy Workers.

51. In its communications of 9 December 1998 and 4 February 1999, regarding the dismissal of trade union leader Mickey Juán Alvarez Aguirre, the Government states that following the adoption of Acts 26546 and 26623, the judiciary was undergoing a process of restructuring which involved considerable staff reductions. Facing a real threat of weakening the administration of justice, it was decided not to give any follow-up to the communication of Mr. Alvarez Aguirre in which he was requesting his trade union leave of absence as Secretary of the Workers' Trade Union of the District of Lambayeque. The Government insists that this refusal was never used to carry out anti-union discrimination as the Committee had concluded. The decision of the President of the High Court of Lambayeque to refuse the trade union leave of absence and requesting the immediate reinstatement of Mr. Alvarez Aguirre was compulsory. This decision was not followed by Mr. Alvarez Aguirre, who limited himself to sending communications to the President of the High Court concerning the denial of granting him the said leave of absence. These communications were submitted to the Executive Commission which then notified once again Mr. Alvarez requesting him to reintegrate his post, but without any success. In any case, Mr. Alvarez Aguirre should have reintegrated his work post regardless of his right to lodge a complaint with regard to the denial to grant him his trade union leave of absence. Nevertheless, Mr. Alvarez Aguirre did not follow the orders of his superiors and abandoned without reasons his work post on 23, 24 and 25 February 1996, as well as from 8 April. Thus, the disciplinary procedure which followed was based on a serious breach of conduct (abandoning his work post) and did not amount to anti-union discrimination from the Government as it was alleged by the National Federation of Judiciary Workers. According to the Government, it did not constitute anti-union discrimination nor was it linked to his status as trade union leader. In the labour legislation, trade unionists are duly protected in the case of restructuring which involves staff reductions. In this regard, article 30 of Decree No. 25593 on labour relations provides that trade union protection guarantees that certain workers cannot be dismissed nor transferred to another work post of the same enterprise without a valid justification or without the consent of the worker involved. The consent of the worker is not required if the transfer does not prevent the trade union leader to exercise his trade union activities.

52. In this respect, the Committee recalls that the complainant had alleged (without the Government's denial) that Mr. Alvarez Aguirre had used his trade union leave of absence in conformity with an administrative decision of the Supreme Court (No. 023-A-87 D/GA/PS) which grants trade union leave of absence on the sole condition to inform the presidents of the committees concerned and the personnel office. In these circumstances, the Committee considers that the necessity to operate massive restructuring cannot be used by the Government as an excuse to refuse to grant a trade union leave of absence, and this is particularly true when the restructuring involves staff reduction and even more so in the case of a dismissal of a trade union leader who was using his trade union leave of absence. Therefore, the Committee once again requests the Government to take the necessary measures to ensure that Mr. Alvarez Aguirre is reinstated in his job without loss of acquired benefits.

53. Concerning the refusal to grant a zoning certificate in order for the Private Higher Technology Institute of Energy and Development (ISTED) to operate, the Government states that the municipality of metropolitan Lima has not yet rendered its decision concerning the appeal lodged by the Federation of Peruvian Electricity and Energy Workers. The Government declares that it will transmit to the Committee the decision as soon as it is handed down. The Committee is thus waiting for the decision to be rendered.

54. Finally, with respect to the allegation concerning the refusal of the enterprises Electro Sur Este Ltd. and EGEM Ltd. to observe the arbitration award that concluded the collective bargaining process, the Government states that the final appeal lodged by the Federation of Peruvian Electricity is still pending. The Government declares that it will transmit the decision in question as soon as it is rendered. The Committee is thus awaiting the final decision to be handed down.

Case No. 1785 (Poland)

55. At its June 1998 meeting, the Committee had requested the Government to keep it informed of any progress concerning cash compensation to trade union organizations and assignations of immovables to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ). On that occasion, the Committee had noted the complexity of the question of divisions of assets of the former Trade Union Association as well as the objections of NSZZ "Solidarnosc" concerning various decisions and regulations of the Minister of Labour and Social Policy and the work of the Stock-Taking Commission (see 310th Report, paras. 53 to 65).

56. In a communication dated 1 October 1998, the Government had stated that the Minister of Labour and Social Policy had prepared and submitted on 29 June 1998, for interministerial consultations, the necessary draft amendment of the Act of 25 October 1990 (the Act of 25 October 1990) concerning the restitution of assets forfeited by trade unions and social organizations following the imposition of the martial law. The mentioned amendment proved necessary in view of the need for possibly urgent regulation of due non-cash liabilities of the state Treasury in result of:

-- the pronouncements by the Social Revindication Commission -- the total amounts due had already reached the level of almost PLN82 million (including statutory interests for delays accumulated before 31 July 1998);

-- execution of newly arising non-cash liabilities of the state Treasury.

57. The Government had indicated that the above-mentioned draft of the amending Act had also taken account of the expectations for the change of certain provisions of the Revindication Act, which had been expressed by NSZZ "Solidarnosc" during the preliminary consultations.

58. The Government had further indicated that, together with the above-mentioned draft amendment of the Revindication Act, a draft executory regulation of the Council of Ministers had been submitted for interministerial consultation. The regulation had been necessary for governing the practical side of the Treasury's liabilities. Both draft texts had been transmitted, in accordance with article 19 of the Trade Union Act, to NSZZ "Solidarnosc" and to the Polish Trade Union Alliance (OPZZ) seeking trade union opinion.

59. Finally, the Government had stated that the actual state of work on the mentioned draft texts meant that they would be examined by the Council of Ministers in autumn 1998 and that the draft Act would immediately be submitted to the Diet (Parliament). The executory regulation of the Council of Ministers would be issued directly after the provisions of the above-mentioned amending Act would come into force. In a communication dated 18 February 1999 the Government stated that the law amending the law of 25 October 1990 was adopted on 3 December 1998 and entered into force on 30 December 1998.

60. As regards the objections of NSZZ "Solidarnosc" that its vested rights had been violated by section 45 of the Trade Union Act, the matter was brought before the Constitutional Tribunal which rejected it on 3 December 1997. The Government also mentioned that NSZZ "Solidarnosc" had challenged the constitutionality of section 7 of the Act of 9 May 1997 amending the Trade Union Act and concerning Workers' Recreation Fund -- such fund being considered as enterprise assets pursuant to the Civil Code. The application of NSZZ "Solidarnosc" was granted by the Constitutional Tribunal on 3 June 1998 and by the Diet on 28 August 1998. The Parliament should adopt a new text on the assignation of Employees' Recreation Fund assets. In its communication of 18 February 1999, the Government specified that in December 1998 the Senate adopted a bill which was transmitted to the Diet.

61. The Committee takes note with interest of the detailed information provided by the Government and once again expresses the hope that all issues concerning trade union assets will be resolved in the near future and asks the Government to keep it informed in this regard.

Case No. 1581 (Thailand)

62. The Committee last examined this case at its November 1998 meeting when it noted that the State Enterprise Labour Relations Bill which has been referred to by the Government since 1993 had finally been adopted by the House of Representatives in the fall of 1998 but was being challenged before the Constitutional Court (see 311th Report, para. 89).

63. In a communication dated 4 February 1999, the Government indicates that on 12 November 1998 the Constitutional Court decided that the Bill was enacted contrary to the provisions of the present Constitution and the Bill therefore lapsed according to section 262, paragraph 3, of the Constitution. The Government stresses the efforts it has made to restore to state enterprise employees the right to organize and to bargain collectively and regrets that its attempts over the past years to secure the reform passage of the SELR Bill ended in November due to a determination based on legal technicalities that the Bill was unconstitutional. The Government reaffirms its commitment to reform the Bill and states that the Ministry of Labour and Social Welfare has immediately reintroduced the reform passage which has been approved by Cabinet and forwarded to the House of Representatives, where it passed its final reading on 20 January 1999 and was forwarded to the Senate. The Bill has now passed its first reading in the Senate and been referred to an ad hoc scrutinizing committee.

64. The Committee takes due note of this information. It must however recall that, during its examination of this case in November 1991, the Committee had noted with great concern the numerous and serious incompatibilities between the State Enterprise Labour Relations Act (SELRA) and the principles of freedom of association and urged the Government to take measures to repeal this Act without delay (see 279th Report, para. 482). The Committee trusts that the necessary measures will be taken in the near future to amend the legislation so as to restore fully the right to organize and to bargain collectively to state enterprise employees and requests the Government to keep it informed in this regard.

Case No. 1895 (Venezuela)

65. At its June 1998 meeting (see 310th Report, para. 66), the Committee examined allegations concerning the arbitrary detention of Mr. José Ramón Pacheco, President of the Single Grass-Roots Union of Workers of the Department of Education (SUBATRA). The Committee noted that the judicial authorities had decided to release Mr. José Ramón Pacheco while the investigation continued, and requested the Government to keep it informed of the results of the criminal proceedings against the trade union officer for suspected falsification of documents. In its communication of 4 November 1998, the Government stated that the investigation is still going on since responsibility has not yet been determined, though there is some evidence that the commission committed an error, but the guilty parties have not yet been determined. The Committee takes note of this information, and requests the Government to keep it informed of the results of the judicial proceedings in question.

66. Finally, as regards Cases Nos. 1618 (United Kingdom), 1834 (Kazakhstan), 1837 (Argentina), 1843 (Sudan), 1849 (Belarus), 1850 (Congo), 1869 (Latvia), 1884 (Swaziland), 1886 (Uruguay), 1891 (Romania), 1900 (Canada/Ontario), 1914 (Philippines), 1918 (Croatia), 1921 (Niger), 1926 (Peru), 1937 (Zimbabwe), 1938 (Croatia), 1942 (China/Hong Kong), 1956 (Guinea-Bissau), 1957 (Bulgaria), 1969 (Cameroon), 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 received information concerning Cases Nos. 1698 (New Zealand), 1826 (Philippines), 1852 (United Kingdom), 1854 (India), 1862 (Bangladesh), 1890 (India), 1908 (Ethiopia), 1912 (United Kingdom/Isle of Man), 1914 (Philippines) 1945 (Chile) and 1966 (Costa Rica), which it will examine at its next meeting.