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 12 November 1999, under the chairmanship of Professor Max Rood.

2. The members of Mexican, Venezuelan, Japanese and Pakistani nationality were not present during the examination of the cases relating to Mexico (Case No. 1974), Venezuela (Cases Nos. 1986 and 1993), Japan (Case No. 1991) and Pakistan (Case No. 2006).

3. Currently, there are 96 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 33 cases on the merits, reaching definitive conclusions in 16 cases and interim conclusions in 17 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. 2028 (Gabon), 2029 (Argentina), 2031 (China), 2032 (Guatemala), 2033 (Uruguay), 2034 (Nicaragua), 2035 (Haiti), 2037 (Argentina), 2040 (Spain), 2041 (Argentina), 2043 (Russian Federation), 2045 (Argentina), 2047 (Bulgaria), 2049 (Peru), 2050 (Guatemala), 2052 (Haiti), 2053 (Bosnia and Herzegovina), 2054 (Argentina), 2055 (Morocco), 2056 (Central African Republic), 2057 (Romania), 2058 (Venezuela) and 2059 (Peru) 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. As regards Cases Nos. 2029, 2037, 2041 and 2045 (Argentina), the Government stated that it would send its observations shortly.

Observations requested from governments

5. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1880 (Peru), 1888 (Ethiopia), 1979 (Peru), 2014 (Uruguay), 2019 (Swaziland) and 2022 (New Zealand). In Cases Nos. 1888 (Ethiopia), 1989 (Bulgaria) and 2031 (China), the governments have stated that they would send their observations. With regard to Case No. 2022 (New Zealand), the Government has indicated that there would be a delay in the sending of its reply due to the forthcoming general elections.

Observations requested from complainants

6. In Cases Nos. 1835 (Czech Republic) and 1980 (Luxembourg), the replies of the governments concerned have been transmitted to the complainants for comments. The Committee requests the complainants to send them without delay.

Partial information received from governments

7. In Cases Nos. 1951 (Canada/Ontario), 1970 (Guatemala), 1975 (Canada/Ontario), 1965 (Panama), 1998 (Bangladesh), 2010 (Ecuador), 2017 (Guatemala), 2036 (Paraguay), 2039 (Mexico) and 2048 (Morocco), 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 the facts.

Observations received from governments

8. As regards Cases Nos. 1865 (Republic of Korea), 1953 (Argentina), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1963 (Australia), 1984 (Costa Rica), 1989 (Bulgaria), 1992 (Brazil), 2007 (Bolivia), 2008 (Guatemala), 2013 (Mexico), 2021 (Guatemala), 2024 (Costa Rica), 2025 (Canada/Ontario), 2027 (Zimbabwe), 2030 (Costa Rica) and 2044 (Cape Verde), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1995 (Cameroon) and 2023 (Cape Verde), the Committee observes that, despite the time which has elapsed since the submission of the complaints, it has not received the observations of 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.

Missions

10. In the context of Case No. 2011 (Estonia) concerning allegations of governmental interference in the establishment and internal functioning of trade unions, the Government invited the ILO to send a mission to review the matters raised in the case with representatives of government and organizations of workers and employers, with a view to finding a solution in accordance with the principles of freedom of association. The mission took place from 25 to 27 August 1999; it was led by Ms. Anna Pouyat, Deputy Chief of the Freedom of Association Branch, who was accompanied by Ms. Shauna Olney, Senior Legal Officer, Freedom of Association Branch, and Mr. Giuseppe Casale, Senior Industrial Relations Specialist, ILO Budapest. The Committee requests the Government to provide further observations on the complainants' allegations to enable it to examine the case at its next session in March 2000, and to keep it informed of the registration status of the Central Association of Estonian Trade Unions (EAKL).

Withdrawal of a complaint

11. In communications dated 26 and 28 October 1999, the International Federation of Chemical, Energy, Mine and General Workers' Unions (ICEM) and the United Steelworkers of America, AFL-CIO/CLC (USWA), have requested that the complaint which they brought jointly against the Government of the United States (Case No. 2026) be withdrawn. The Committee has taken due note of this request and decided to close the matter.

Transmission of cases to the Committee of Experts

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: Panama (Case No. 1931), Venezuela (Case No. 1993) and Ukraine (Case No. 2038).

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

Case No. 1509 (Brazil)

13. The Committee last examined this case which concerns the murder, on 12 September 1989, of the trade union leader Valdicio Barbosa dos Santos at its March 1999 meeting (see 313th Report, para. 18) and, at that time, noted that: the legal proceedings concerning this case were still pending before the tribunal of the State of Espíritu Santo (in appeal from the criminal court) following an appeal lodged by Romualdo Eustáquio Luz Faria -- accused of having participated in the aggravated homicide and liable to penalties of 12 to 30 years' solitary confinement provided for in sections 121(2)(I) and (IV) and 29 of the Penal Code -- and that the other accused, Gilberto Marçal da Rocha had not yet been located, which was why the sentence had not been served on him. The Committee had asked the Government to keep it informed of the final result of the legal proceedings in question.

14. In a communication dated 28 July 1999, the Government states that the appeal lodged by the accused Romualdo Eustáquio Luz Faria had been turned down. In connection with the other accused, Gilberto Marçal da Rocha, the Government states that there was enough evidence to presume that he was guilty of the crime; however, given that he was still on the run and that an order had been issued summoning him to appear in order to be detained pending his trial, he was declared to be in contempt of court and the period of prescription for the legal proceedings was suspended.

15. The Committee takes note of this information.

Case No. 1997 (Brazil)

16. At its June 1999 meeting, the Committee had requested the Government and the complainant "to keep it informed of whether the enterprises of the Porto Alegre port sector (had) denounced the collective agreement as a result of the meeting to which the complainant objected (called by the Executive Group for Port Modernization) and whether sanctions (had) been applied to them for complying with the agreement" (see 316th Report, para. 162).

17. In its communication of 21 September 1999, the Government states that the agreement in question had been denounced by the National Ministry of Labour because it contained provisions in violation of the national legislation (detailed by the Government in its communication and including, for example, the failure to observe a minimum break of 11 hours between two shifts), and that no sanctions had been applied in respect of compliance with the collective agreement.

18. The Committee takes note of this information.

Case No. 1934 (Cambodia)

19. The Committee last examined this case at its May 1999 meeting (see 316th Report, paras. 196-213). It had requested the Government to review the situation of the dismissed trade union leaders and workers of the Tack Fat Garment Factory and the factory of Samhan Fabrics Co. Ltd. within the framework of impartial procedures and to introduce in its legislation measures granting effective protection against acts of anti-union discrimination.

20. In a communication dated 12 August 1999, the Government states that concerning the dismissals of the trade union leaders and workers of the Tack Fat Garment Factory and the factory of Samhan Fabrics Co. Ltd., the Ministry of Labour has done everything it could to settle them by complying with the labour law provisions and the relevant ministerial orders and that it has already sent detailed reports to the Committee in this respect. Nevertheless, in order to ensure impartiality in the settlement of the above disputes, the Government is requesting technical assistance from the Office.

21. Concerning legal measures granting effective protection against acts of anti-union discrimination, the Government explains that legal provisions do exist in the Cambodian Labour Code, particularly articles 279-282 and 292-294. The Government insists that those guilty for violating the abovementioned provisions are liable to severe fines and/or imprisonment to up to one month. These penalties are spelled out in articles 369, 373 and 380 of the Labour Code.

22. The Committee takes due note of this information and will transmit the request for technical assistance to the competent bodies of the Office.

Case No. 1985 (Canada)

23. At its June 1999 meeting, the Committee urged the Government to make every effort in the future to avoid having recourse to back-to-work legislation in the postal service and suggested that the Government examine the possibility of introducing, in agreement with the trade union concerned, measures, such as negotiated minimum services, in order to avoid recourse to back-to-work laws. The Committee also requested the Government to re-examine the proposal that it have recourse to the assistance of the Office in order to facilitate finding solutions to the difficulties identified, and to provide the Committee with an answer in this regard (see 316th Report, para. 326).

24. In a communication of 1 September 1999, the Government affirms its commitment to the principle of free collective bargaining. Regarding efforts to avoid having recourse to back-to-work legislation in the future, the Government states that during the recent review of the relevant provisions of the Canada Labour Code, workers' and employers' organizations were extensively involved in the consultation process, and many of the recommendations came about as a result of consensus. The Government states further that according to a report of the Task Force reviewing the legislation, both business and labour agreed that the system generally works well. On the issue of negotiated minimum services, the Government points out that with effect from 1 January 1999, revisions to the Canada Labour Code were proclaimed, including provisions governing the maintenance of activities that are to be continued during a legal strike or lockout. The legislation requires that the employer and trade union reach an agreement on the supply of services, operation of facilities or production of goods necessary to prevent an immediate and serious danger to the safety or health of the public. Failing agreement, the question may be referred by either party or the Minister of Labour to an independent, quasi-judicial tribunal (the Canada Industrial Relations Board). In response to the Committee's request that the Government re-examine the proposal that it have recourse to the assistance of the Office, the Government, while acknowledging the concerns expressed by the Committee, states that in light of its continuing commitment to the principle of free collective bargaining and the extensive recent revisions to the Canada Labour Code, there is no need for a direct contacts mission or other ILO assistance.

25. The Committee takes note of this information. With respect to the Committee's recommendation urging the Government to make every effort in the future to avoid recourse to back-to-work legislation in the postal service, the Committee notes that the follow-up information provided by the Government is very general in nature, relating to the overall industrial relations system rather than the specific situation in the postal service. Given that this is not the first instance of back-to-work legislation being imposed in the postal sector in Canada, the Committee would urge the Government to make every effort in the future to avoid having recourse to back-to-work legislation in this sector specifically. Concerning negotiated minimum services in the postal service, the Committee notes the recent amendments to the Canada Labour Code highlighted by the Government. The Committee observes, however, that the provisions apply to essential services in the strict sense of the term, which in the view of the Committee would not include the postal service (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 545). The Committee, therefore, again suggests that the Government examine the possibility of introducing, in agreement with the trade union concerned, measures, such as a negotiated minimum service, in order to avoid recourse to back-to-work legislation in the postal service, and requests the Government to keep it informed in this respect.

Case No. 1942 (China/Hong Kong Special Administrative Region)

26. The Committee examined this case at its November 1998 meeting (see 311th Report, paras. 235 to 271) on which occasion it made the following recommendations:

(a) the Committee requests the Government to take steps to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO), which restricts union office to persons actually employed in the trade, industry or occupation of the trade union concerned;

(b) the Committee requests the Government to take the necessary steps to repeal: (i) section 8 of the ELRO which subjects the use of union funds in certain instances to the approval of the Chief Executive of Hong Kong; and (ii) section 9 of the ELRO which institutes a blanket prohibition on the use of union funds for any political purpose;

(c) the Committee requests the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, with a view to ensuring that provision is made in legislation for: (i) protection against all acts of anti-union discrimination; and (ii) the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent thereto of both the employer and the employee concerned;

(d) the Committee requests the Government, in the near future, to give serious consideration to the adoption of legislative provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes which respect freedom of association principles.

27. In a communication dated 25 May 1999, the Government refers to the above recommendations of the Committee. Concerning the issue of restrictions on the eligibility of union officials to stand for office, the Government points out that section 17(2) of the Trade Union Ordinance provides that persons who are or who have been engaged or employed in the trade, industry or occupation of the trade union concerned can become officers of the union. In addition, any person who is or has not been engaged or employed in the trade, industry or occupation of the trade union concerned can become an officer with the consent of the Registrar of Trade Unions. So far, all applications for consent have been approved. The Government is nevertheless actively reviewing the occupational requirement of trade union officers and will consult the Labour Advisory Board (LAB) in due course on the outcome of the review.

28. In this regard, the Committee once again recalls that the determination of conditions of eligibility of union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations. Noting that the Government is reviewing the occupational requirement of trade union officers, the Committee once again requests the Government to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO), which restricts union office to persons actually or previously employed in the trade, industry or occupation of the trade union concerned.

29. With regard to government restrictions on the use of union funds, the Government first of all states that section 33(1) of the Trade Union Ordinance specifies the areas in which unions may expend their funds. According to the Government, those specifications are broad enough to enable trade unions to use their funds to promote the interests of their members. Moreover, to cater to the needs of individual unions, the Chief Executive of Hong Kong can give his approval for unions to contribute or donate funds to trade unions established outside Hong Kong and for other purposes. With regard to restrictions on the use of union funds for political purposes, the Government indicates that through such restrictions, it seeks to ensure that trade unions perform their true functions of promoting and protecting the interests of their members and are not engaged essentially in political activities. While believing that the Trade Union Ordinance provides sufficient flexibility on the use of union funds, the Government states it is actively reviewing the provisions on union funds and will consult the Labour Advisory Board on the outcome of the review.

30. Recalling that section 8 of the ELRO subjects financial contributions to trade unions or similar organizations abroad as well as the use of union funds for any other purposes than those enumerated in section 33(1) of the Trade Union Ordinance of 1989 to the "approval of the Chief Executive", the Committee would reiterate that provisions which give authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association. Similarly, recalling that section 9 of the ELRO contains a blanket prohibition on the use of union funds for any political purpose, the Committee would remind the Government that provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association. Noting the Government's statement that it is actively reviewing the provisions on union funds, the Committee once again requests the Government to take steps to repeal sections 8 and 9 of the ELRO.

31. With regard to the issue of protection against acts of anti-union discrimination, the Government indicates that the Employment Ordinance provides protection against all acts of anti-union discrimination which are not confined to dismissals only. Moreover, Part VIA of the Employment Ordinance provides for reinstatement or re-engagement subject to the prior mutual consent of the employer and employee concerned. Where no order for reinstatement or re-engagement is made, the labour tribunal may award to the employee termination payments and compensation of up to a maximum of HK$150,000.

32. As regards the issue of the scope of protection against acts of anti-union discrimination, the Committee notes that section 32A(1)(c)(i) of the Employment Ordinance provides for protection only against dismissal of workers on grounds of union activities and section 32A(5)(a) of the same Ordinance entitles an employee to make a claim for remedies only in relation to a dismissal on grounds of trade union membership, office or activities. The Committee once again reminds the Government that protection against acts of anti-union discrimination should cover not only dismissal but also any discriminating measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker. As regards the requirement of prior mutual consent in the absence of which a worker may not be reinstated but instead awarded compensation, the Committee does not consider that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities. The Committee therefore once again requests the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, with a view to ensuring that provision is made in the legislation for: (i) protection against all acts of anti-union discrimination; and (ii) the possibility of the right to reinstatement which would not be conditional upon the prior mutual consent of both the employer and the employee concerned.

33. Finally, with regard to the issue of promoting collective bargaining through legislation, the Government points out that there is no consensus on this issue within the Legislative Council. On 9 December 1998, the Legislative Council voted down a motion requesting the Government to submit to the Council for reconsideration, among others, the repealed legislation on compulsory collective bargaining. On 28 April 1999, the Council also voted down a motion requesting the Government to consider, among others, legislation for compulsory collective bargaining. An amended motion requesting legislation for a bargaining mechanism and union recognition was also voted down at the same sitting.

34. The Committee deeply regrets this state of affairs which runs contrary to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. Since the Committee had previously considered that the case at hand furnished a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes, the Committee once again requests the Government to give serious consideration to the adoption of appropriate provisions which respect freedom of association principles.

35. The Committee requests the Government to keep it informed of measures taken to give effect to its recommendations.

Case No. 1988 (Comoros)

36. At its June 1999 session (see 316th Report, paras. 379-390), the Committee had urged the Government, if it had not yet been done, to release without delay the four trade union officers of the USATC, i.e. Ibouroi Ali Tabibou, Abdéramane Mohamed Said, Mad Ali and Mdjomba Moussa, if it was found that they had been arrested for reasons connected with the exercise of their trade union rights, and to keep it informed in this respect.

37. In a communication dated 7 July 1999, the Government points out that Ahmed Abdou Halidi and Ibouroi Ali Tabibou had not been imprisoned but only detained for the time required for the legal authorities to question them; they had been subsequently released.

38. The Committee takes note of this information but regrets that the Government failed to provide any information on the fate of the other trade union officials, i.e. Abdéramane Mohamed Said, Mad Ali and Mdjomba Moussa. The Committee urges the Government once again to confirm that these trade union officials have been released and to keep it informed in this respect.

Case No. 1875 (Costa Rica)

39. At its March 1997 meeting the Committee made the following recommendation regarding the pending allegations of anti-union discrimination (see the Committee's 306th Report, para. 361): "The Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the largest possible number of dismissed UNEIDA executive board members."

40. In its communications of 27 August and 7 September 1999, the Government refers to the considerable efforts which it has made to comply with the Committee's recommendations, and indicates that the case is currently being heard by the courts of second instance, where the complainant must present its observations and objections at the appropriate time and in the appropriate form.

41. The Government attaches documents indicating that the executive of the IDA as a gesture of good faith ordered the provisional reinstatement of four of the dismissed union leaders; five other union officials are still awaiting a decision.

42. The Committee notes this information with interest, while recalling that the dismissals of the union leaders date from 1996 and occurred in an autonomous state establishment. The Committee requests the Government to take measures that will bring about a rapid solution to the dismissals that are still pending, taking into account the favourable rulings already handed down in the lower court.

Case No. 1966 (Costa Rica)

43. In its last examination of the case in June 1999, the Committee made the following recommendations on the allegations that had remained pending (see 316th Report, paras. 53-55):

The Committee requests the Government to keep it informed of the outcome of the instructions given to the administrative authorities with a view to finding a solution and achieving the reinstatement of the dismissed persons (by the FERTICA SA ENTERPRISE) and expresses the hope that these reinstatements will be made in the very near future.

The Committee requests the Government to study the possibility of amending legislation so that once an inquiry concludes that acts of anti-union discrimination have occurred, the effects of such acts shall be declared null and void at least until the judicial authorities have ruled on the matter.

The Committee also requests the Government to carry out an inquiry into the alleged promotion by the enterprise of an executive board parallel to that of the Association of Workers of FERTICA SA (AFTe) and to keep it informed of the inquiry into the promotion by the enterprise of a new trade union (SITRAFER).

44. In its communication of 27 August 1999, the Government states that it has instructed the competent authorities to comply with all the Committee's conclusions and recommendations, taking into account a court ruling barring the actions which were the subject of the complaint by lapse of time, that ruling was upheld following an appeal from the Ministry of Labour. The Government describes the conciliation proceedings that have been initiated.

45. The Government adds that with regard to legislation, it has brought draft legislation before the Legislature with a view to amending certain provisions of the Labour Code in the spirit of the Committee's recommendations. On 16 March 1999, the legislation in question received the unanimous endorsement of the Legislature's Standing Committee on Legal Affairs and is now being examined in a national consultation process. Its purpose is to introduce greater speed and flexibility into the administrative procedures and mechanisms provided for in the Labour Code and is in keeping with the comments made in previous years by the Committee of Experts. The text of the proposed amendments is as follows:

...

Section 367bis. It shall be absolutely prohibited for employers to dismiss the workers referred to in section 367 except on grounds related to a serious failure to fulfil obligations arising from the contract of employment, in accordance with the reasons established in the present Code.

In such cases, the employer shall be obliged to follow a formal procedure before dismissal to demonstrate the existence of the reasons given for the dismissal. The procedure in question shall be such as to ensure in all cases that due process is observed for the protected worker in question, that any evidence from witnesses or documents submitted by the worker is properly examined, and that the worker shall have access to the file and the right to be assisted by a trained legal specialist or other designated representative. If the worker so requests, the labour inspector of the relevant jurisdiction shall also be allowed to participate in the proceedings.

In cases in which the employer, having followed the due procedure, proceeds with the dismissal, the worker concerned shall be entitled to apply to a labour court of the appropriate jurisdiction for summary proceedings to review the decision, verify the existence of the reasons given for the dismissal based on the evidence obtained and ensure that said reason is recorded in the file presented by the employer.

The competent judge shall within 48 hours of receiving the worker's application grant a hearing to the respondent in order that it may within three days submit a certified copy of the file. Upon expiry of this period, if the employer has not submitted the required documents, or if these documents do not confirm the reasons given for the dismissal, or if the established procedure has not been followed, the judge shall without any further formality order the immediate reinstatement of the worker with full rights. In all cases, any ruling in these proceedings shall be based solely on the case presented by the employer and given within a period of not more than ten days of receiving the application by the dismissed worker.

When a ruling is given in favour of reinstatement, it shall be enforced by the judge within 24 hours of the ruling. An employer or employer's representative who refuses to implement a reinstatement order shall be required to pay a sum equivalent to one day's wages to each worker concerned for every calender day during which it fails to comply with the order. Failure to reinstate shall also be deemed to be an offence subject to a fine under section 614, paragraph 6 of the present Code.

During the course of the proceedings, no type of interlocutory challenge shall be admissible and ruling shall be subject to appeal only in the Higher Labour Court, which shall give a ruling within a period of 48 hours. Once a definitive ruling is handed down it shall have the character of a formal matter adjudged.

Section 368. Workers covered by the present law shall not be liable to dismissal without reason as provided for under the Labour Code. The competent labour judge shall declare null and void such a dismissal where there is no just cause for the dismissal in accordance with the present Code, or in the case of non-compliance with the procedure established under the previous section and shall order the reinstatement of the worker and payment of wage arrears, in addition to any sanctions to which the employer may be liable under the terms of the present Code and its supplementing and associated enactments. If the worker expressly indicates the desire not to be reinstated, he or she shall be paid compensation furthermore to the labour rights corresponding to a dismissal without reason equivalent to the wages which would have been paid during the period in which protection under the terms of section 367 was not provided.

46. The Committee notes with satisfaction the proposed amendments of the Labour Code submitted to the Legislative Assembly following tripartite consultations. The Committee hopes that the amendments will be adopted in the very near future and requests the Government to keep it informed in this regard.

47. As regards the other pending recommendations, the Committee takes note of the fact that the judicial authorities have ruled that the actions of FERTICA SA were barred by lapse of time. It also notes the instructions issued by the Government to the competent authorities to carry out the necessary investigations and comply with the Committee's recommendations. Under these circumstances, the Committee reiterates the conclusions and recommendations which it made in June 1999 and hopes that at its next meeting it will see conclusive results in all the matters still pending.

Case No. 1954 (Côte d'Ivoire)

48. During its last examination of the case at its March 1999 session (see 313th Report, paras. 29-31), the Committee once again urged the Government to take all necessary measures in order to reinstate in their posts, if they so wished, all workers and staff delegates who were victims of anti-trade union discrimination following strike action at the Abidjan Ship Repair and Industrial Work Enterprise (CARENA). In addition, it requested 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 had been set up in this context. The Committee deplored the fact that the Government had provided no new information; it reiterated its conclusions according to which, in the case in point, the use of police forces constituted an infringement of the trade union rights of the workers concerned.

49. In its response dated 26 May 1999, the Government again indicates that, given the legal provisions and regulations in force as well as the relevant practice concerning the management of industrial disputes, the strike action initiated by the free trade union federation "Dignité" was clearly illegal under the terms of article 82.3 of the Labour Code and that the Minister of Employment, Public Service and Social Welfare, the relevant competent authority, had notified the workers of the illegality of the strike and had informed them of the risks they were running. The Government "is indignant at the conclusions of the Committee on Freedom of Association, according to which 'the responsibility for declaring a strike illegal should lie with an independent body which has the confidence of the parties'; it also questions the conclusions which, in relation to the legal provisions in force, have no legal foundation and, beyond any doubt, constitute serious interference by the Committee on Freedom of Association, the role of which is not only to attend to the protection of fundamental freedoms, particularly freedom of association and the exercise of the right to strike, but also to ensure compliance by the social partners with the rules governing the Republic". Accordingly, in the Government's opinion, under no circumstances may the Committee on Freedom of Association allege that the ministry responsible for labour does not represent an independent body and, hence, that it does not have the confidence of the parties to the dispute. The Government considers that the Minister of Employment, Public Service and Social Welfare, as an administrative authority, constitutes an independent body. With regard to the alleged lack of confidence, the Government also questions the analysis presented by the Committee on Freedom of Association which has not deigned to consult the employer party to the dispute. The Government states that it is "entitled to expect from the Committee on Freedom of Association substantiated, coherent observations devoid of any sentimentalism and bias". It believes that it is only with this aim in view that the Committee will truly assist in making the parties to industrial relations aware of their responsibilities and, thereby, promote social dialogue. More specifically, the Government states that, contrary to the false allegations of Dignité, out of the 330 workers registered at the beginning of the strike on 5 March 1997, 138, including 14 staff delegates, were dismissed for dereliction of duty. The Government maintains that the figure of 300 dismissed workers, as advanced by Dignité and accepted without further inquiry by the Committee on Freedom of Association, is erroneous. In fact, out of the 330 workers on the CARENA payroll in March 1997, 245 were declared in dereliction of duty on 14 April 1997, 64 were not re-employed, 43 were reinstated, 138 including 14 staff delegates were still in dereliction of duty as of 6 March 1999 and the enterprise's workforce numbered 294 on the same date. With regard to the resumption of negotiations following the industrial dispute in CARENA, the Government indicates that three meetings of the industrial advisory board were held after the Committee on Freedom of Association presented its recommendations. These meetings took place on 17 February, 3 March and 20 May 1999. The social partners took opposing positions regarding the recommendation to reinstate the dismissed workers: the employers believe that the industrial advisory board is not empowered to decide that the workers should be reinstated; they decided that it would be appropriate for the workers who considered that their rights had been infringed to present their claims to the relevant judicial bodies; on the other hand, the workers' organizations believe that the Government should exercise its power to secure the reinstatement of the dismissed workers. Regarding the recommendation to pursue negotiations, the industrial advisory board proposed that the CARENA issue be reopened. A joint technical committee made up of an equal number of worker and employer representatives was set up. It was to commence work after the appointment of the various representatives on 3 June 1999. The Government recalls that the relevant regulations, in particular Decree No. 65-131 of 2 April 1965, establish this body's terms of reference, its structure and methods of work and that the industrial advisory board is not entitled to order an employer to reinstate dismissed workers. It repeats that workers who consider that their rights have been infringed may lodge a complaint with the tribunals (article 81.7 to 81.31 of the Labour Code). As regards interventions by the police during the protest march of 4 February 1998, the Government vigorously objects to the reservations expressed by the Committee on Freedom of Association regarding the information provided. The Government once again declares that Dignité had not obtained prior authorization for the march, as required pursuant to Act No. 92-464 on the repression of certain forms of violence. In its opinion, whereas trade union rights are recognized and applied, they must nevertheless be exercised without endangering public order. Finally, in the light of the action it has undertaken in favour of social dialogue and tripartite cooperation, the Government states that it cannot entertain groundless injunctions from the Committee on Freedom of Association.

50. The Committee takes note of the Government's comments and observations to the effect that the Committee's conclusions constitute serious interference. The Committee notes that where national laws violate the principles of freedom of association, it has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO's technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the Constitution of the ILO and the applicable Conventions (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 8). Hence, the Committee once again reiterates its consistent jurisprudence according to which the decision to declare a strike illegal should lie with an independent body which has the confidence of the parties. The Committee stresses the importance of a spirit of dialogue and cooperation which should prevail in the resolution of industrial disputes. Consequently, the Committee trusts that all of the staff delegates affiliated to Dignité and all of the workers dismissed due to participating in peaceful strikes in connection with the industrial dispute in the CARENA enterprise will be reinstated in their posts if they so wish. It requests the Government to keep it informed in this respect.

Case No. 1987 (El Salvador)

1. At its March 1999 meeting, the Committee made the following recommendations:

(a) Observing that legislation imposes a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that are contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that make it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case make it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality), the Committee:

-- concludes that the legislation seriously infringes the principles of freedom of association;

-- regrets that in applying this legislation the authorities have refused legal personality to a number of trade unions in the process of being set up in the ANTEL enterprise and in the Telecommunications Company of El Salvador SA de C.V.; and

-- regrets that the application for recognition and registration made by SITTEL in August 1998 has not been dealt with and is still pending. The Committee requests the Government to accelerate the procedure and register the union;

-- urges the Government to take measures with a view to amending the legislation so that the current excessive formalities that apply to the establishment of trade union organizations are removed and so that workers do not have to constitute enterprise-based works unions if they do not consider this to be appropriate.

(b) The Committee requests the Government to take steps with a view to reinstating the trade unions leaders Mr. Luis Wilfredo Berrios and Mrs. Gloria Mercedes González in their posts and to guarantee that in future proprietorial changes that occur in the framework of privatization do not directly or indirectly threaten unionized workers and their organizations.

(See 313th Report, para. 117.)

52. In its communication dated 10 October 1999, Communications International (CI) pointed out that the Government has not taken any steps to reinstate the trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González in their posts, nor to guarantee recognition of the unions, nor to amend the legislation along the lines of the Committee's recommendations.

53. In its communications dated 8, 23 and 27 October 1999, the Government stated, in respect of the provisions which the Committee had recommended amending, that the constitutional requirements and those concerning the acquisition of legal personality of a trade union were set forth by the National Coordinating Forum, a tripartite body, which had been assisted by an ILO technical mission. The previous legislation has been improved and, according to the information provided in a document published by the International Labour Office which covers El Salvador, the text is in an advanced stage. There is therefore no basis for considering that the legislation seriously violates the principles of freedom of association.

54. The Government adds that legal personality was granted to the Works Union of Telecommunications Employees of El Salvador (SITTEL) on 26 October 1998.

55. As concerns the reinstatement of Luis Wilfredo Berrios and Gloria Mercedes González, the Government states that it cannot interfere with the decisions of the Telecommunications Company of El Salvador SA, which is a private enterprise regulated by its own social rules (the Government appended a letter from the enterprise indicating that the dismissed persons had not fulfilled international standards of productivity, nor did they meet the minimum requirements concerning efficient service and quality).

56. The Committee notes the information provided by the Government, in particular concerning the granting of legal personality to the SITTEL union. As concerns the Government's statement that it is unfounded to say that the legislation seriously violates the principles of freedom of association, the Committee emphasizes that its conclusions had referred only to three aspects of the legislation. Moreover, the fact that the legislation is currently being elaborated within a tripartite forum and that ILO technical assistance has been provided does not necessarily signify that every single provision adopted is in conformity with the principles of freedom of association. The Committee therefore reiterates its previous recommendations concerning the need to amend the legislation. As concerns the Committee's recommendation to the Government to take steps with a view to the reinstatement in their posts of the abovementioned trade union leaders, the Committee notes the Government's statement that it cannot interfere with the decisions of a private enterprise. In this respect, the Committee draws the Government's attention to the principle according to which, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 754). The Committee thus once again requests the Government to take steps with a view to reinstating the trade union leaders Luis Wilfredo Berrios and Gloria Mercedes González in their posts.

Case No. 1960 (Guatemala)

57. At its last examination of the case in June 1999, the Committee made the following recommendations on the outstanding issues (see 316th Report, para. 532):

(a) the Committee requested the Government to keep it informed of developments relating to the understanding which appeared to have been reached at the Mopá and Panorama plantations apparently ending the conflict that had occurred at both plantations;

(b) the Committee requested the Government to recognize the workers' unions at the Alabama and Arizona plantations without delay and to keep it informed in this respect; and

(c) the Committee requested the Government to keep it informed about the results of the mediation measures taken by the authorities concerning the dismissal of workers from the Alabama and Arizona plantations and the legal action initiated by the employers.

58. In its communication of 27 August 1999, the Government reaffirms that the Ministry of Labour and Social Security had done its best to mediate within the sphere of its competence in order to reach a settlement of the disputes at the Mopá and Panorama plantations, which were not only of an industrial nature but involved criminal and commercial factors complicating the situation of the plantations. The actions of the Government within the sphere of its competence, carried out by officials at the highest level, had brought about countless meetings with representatives of both parties in the search for solutions. The workers had sought potential buyers for the plantations, making it clear to them that there were three conditions for settlement of the conflict: reinstatement of the 400 workers, recognition of the trade unions and the signing of a collective agreement at each plantation. For their part, they were promising that: (1) the buyer would not assume responsibility for the labour debt; (2) the collective agreement would be quite moderate, though it would recognize the workers' union; and (3) that the resumption of work would be gradual because of the condition of the plantations. The Ministry of Labour, in turn, had unofficial information to the effect that Mr. Littmann, the leaseholder of the Mopá and Panorama plantations, had reached an agreement with Mr. Fernando Bolaños concerning the sale of those plantations; it was also understood that the consent of Bandegua, as owner of the land, had been obtained for this.

59. The Government also states that legal recognition and registration of the workers' unions of the Alabama and Arizona Plantations Corporation and other concerns within the same group had taken place on 4 March 1999.

60. As to the authorities' mediation activities regarding the dismissal of the Alabama and Arizona plantation workers, the Government states that the Ministry of Labour recognizes the scale and the social and economic implications of the conflict and is continuing to seek alternative financial, organizational and employment solutions for the recovery of the plantations.

61. The most recent steps taken included the following: a visit was made on 7 April 1999 to the Alabama and Arizona plantations by the labour inspector and the parties involved. Moreover, the workers requested immediate reinstatement and payment of the wages owing, to which the employers declared that the Alabama and Arizona plantations no longer existed as productive enterprises because of the enormous losses that had destroyed the resources and capacity of the companies, which did not have the very large sums required to return them to productivity, and that banana cultivation and production were no longer being carried out, since there remained only two properties, totally destroyed and paralysed by the de facto strike. As to reinstatement of the workers, its inadmissibility had been determined by the courts which had declared the strike illegal and given legal authorization for the dismissal of the workers.

62. The Committee takes note of the development recorded in the dispute surrounding the Mopá and Panorama plantations and hopes that the parties involved, with assistance from the authorities if appropriate, can rapidly find a permanent solution. With regard to the second recommendation, the Committee notes with interest the legal recognition of the workers' unions of the Alabama and Arizona plantations. Finally, concerning the dismissal of the workers at the Alabama and Arizona plantations (more than 500 workers according to the complainant) and the criminal proceedings started by the employers, the Committee takes note of the negotiations arranged by the authorities with the parties in connection with the dismissals and observes that, according to the Government's reply, reinstatement of the workers is not feasible because it has been judged inadmissible by the courts through their declaration that the strike was illegal and since the plantations are no longer functioning as productive enterprises. The Committee requests the Government to send it a copy of the ruling that the strike in the Alabama and Arizona plantations was illegal and to inform it of the progress of the criminal proceedings instigated by the employers. The Committee further requests the Government to immediately send its observations on the latest information communicated by the ICFTU in a communication dated 22 October 1999.

Case No. 1719 (Nicaragua)

63. The Committee last examined this case, which concerns dismissals in the customs sector following a strike in May 1993, at its March 1999 meeting (see 313th Report, paras. 39-42). The Committee recalls that on that occasion, fully aware of the difficulty of reinstating the workers who were dismissed almost six years ago, it urged the Government to take all the necessary measures to ensure that the parties to the dispute reach an agreement on full compensation for the workers dismissed, if reinstatement was not possible.

64. In a communication dated 6 August 1999, the Government points out that the services of the General Directorate of Labour Relations and the Directorate of Conciliation and Collective Bargaining are available to help workers to resolve the dispute.

65. The Committee takes note of this information. The Committee again requests the Government to try to ensure that the parties concerned reach an agreement -- possibly with the assistance of these administrative bodies -- on full compensation for the workers dismissed, if reinstatement is not possible.

Case No. 1698 (New Zealand)

66. The Committee last examined this case at its June 1999 meeting (316th Report, paras. 69-71) at which time it strongly reiterated its previous conclusion that provisions that 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; therefore, the Government was requested to amend section 63(e) of the Employment Contracts Act (ECA). It also requested the Government to keep it informed of any measures taken.

67. In a communication of 16 September 1999, the Government adheres to the arguments that it has put before the Committee on a number of previous occasions, namely that section 63(e) provides a balance between the employees' right to strike and the employers' right not to have to face strike action and incur losses due to the actions of other employers over which they have no control or to be bound into arrangements with competing businesses. The Government also provided copies of recent cases concerning the following issues: the interpretation of the anti-discrimination provisions of the ECA in the context of strike action; the power under the ECA for the Employment Court to set aside an employment contract if it was procured by harsh and oppressive behaviour, undue influence, or duress, or if the contract was harsh or oppressive; the negotiation of a new collective employment contract and ratification procedures under the ECA.

68. The Committee takes note of the court decisions forwarded by the Government. With respect to section 63(e) of the ECA, the Committee notes with deep regret that the arguments that have already been rejected by the Committee on numerous occasions have again been raised by the Government. The Committee must once again urge the Government to amend section 63(e) of the ECA to bring it into conformity with freedom of association principles, and requests the Government to keep it informed in this regard.

Case No. 1967 (Panama)

69. In its previous examination of the case in March 1999, the Committee made the following recommendation regarding the allegation which had remained pending (see the Committee's 313th Report, para. 150):

Recalling that Article 5 of Convention No. 87 explicitly states that "workers' and employers' organizations shall have the right to establish and join federations and confederations," the Committee requests the Government to recognize and register, without delay, the affiliation of FENASEP to the Joint Trade Union Central and to keep the Committee informed of developments.

70. In this regard, the Committee notes with satisfaction the information provided by the International Confederation of Free Trade Unions (ICFTU) in its communication of 5 October 1999, according to which the affiliation of FENASEP to the Joint Trade Union Central has been registered by a decision of the Minister of Labour and Social Development.

Case No. 1618 (United Kingdom)

71. At its November 1998 meeting, the Committee noted proposals to outlaw discrimination against trade union members and the blacklisting of trade union activists in the consultative White Paper entitled "Fairness at work" and encouraged the Government to adopt, as soon as possible, provisions ensuring protection against anti-union discrimination, including blacklisting (see 311th Report, paras. 73-75).

72. In a communication dated 29 September 1999, the Government indicates that the Data Protection Act of 1998 contains strict provisions on the processing of personal information, with additional restrictions on the processing of "sensitive" personal data, a definition which includes information on trade union membership. The 1998 Act now extends these restrictions to manually processed data as well as that processed by computer, thus closing the loophole which used to be exploited by the Economic League. In addition, the Employment Relations Act of 1999 contains powers to enable the Government to make regulations to prohibit the compilation, dissemination and use of lists which contain information about trade union membership or activities with a view to their being used by employers or employment agencies in recruitment, or used to discriminate against trade unionists in employment. Draft regulations to be made under the powers in the Act will be published for consultation in the course of next year.

73. The Committee notes this information with interest and requests the Government to keep it informed of any further developments in respect of the protection against anti-union discrimination.

Case No. 1852 (United Kingdom)

74. At its meeting in June 1999, the Committee expressed its regret at the refusal of the Government to carry out an investigation into the allegation of anti-union victimization at Co-Steel and, noting the apparent lack of progress in resolving the serious difficulties in labour-management relations, once again requested the Government to give consideration to establishing an independent investigation into these allegations and to indicate the measures taken to ensure that reasonable access to the plant has been afforded to the Iron and Steel Trades Confederation (ISTC). As concerns the matter of union recognition, the Committee requested the Government to keep it informed of developments in respect of the Employment Relations Bill (see 316th Report, paras. 80-83).

75. In a communication dated 29 September 1999, the Government indicates that the Employment Relations Act of 1999 contains a statutory procedure for trade union recognition, for the purpose of collective bargaining, where that is the wish of a majority of the workforce, in organizations employing 21 or more workers. The procedure seeks to encourage voluntary arrangements where possible, but provides for the Central Arbitration Committee (CAC) to decide on applications for recognition if no agreement is reached. As concerns the request to establish an independent investigation into the situation at Co-Steel, the Government recalls that it does not operate a labour inspectorate system. Cases of alleged infringement of individual employment rights can be heard by employment tribunals which examine such allegations in considerable detail. Furthermore, the Employment Relations Act extends the protection against the victimization of trade unionists and those who seek or campaign for trade union recognition. The Government also indicates that, since the take-over of the Sheerness plant by Allied Steel and Wire, ISTC have been granted access to the plant and have entered into discussions with the new management. While the right of access remains essentially a voluntary matter, the Employment Relations Act now provides for the drawing up of a statutory Code of Practice to provide the union with reasonable access to the workers to campaign for recognition. Furthermore, the Act provides individual workers with the right to be accompanied by a fellow worker or a trade union representative during disciplinary and grievance hearings, whether or not the workers are union members and whether or not their union is recognized by the employer. The Government considers that all of the above developments will enable the problems at Co-Steel to be successfully resolved.

76. The Committee notes the information concerning the 1999 Employment Relations Act with interest. While welcoming the recent positive developments at Co-Steel, the Committee must once again express its regret at the Government's persistent refusal to establish an independent investigation into the allegations of anti-union tactics at the Sheerness plant, particularly in the light of the recent terminations made just prior to the sale of the plant (see 316th Report, para. 81). The Committee once again requests the Government to immediately undertake an inquiry and to keep it informed of any further developments at Co-Steel in respect of union recognition for collective bargaining purposes and draws the attention of the Committee of Experts to the 1999 Employment Relations Act as concerns the application of Conventions Nos. 87 and 98.

Case No. 1581 (Thailand)

77. At its March 1999 meeting, the Committee had recalled with great concern the numerous and serious incompatibilities between the State Enterprise Labour Relations Act (SELRA) and the principles of freedom of association and had urged the Government to take the necessary measures 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 (see 313th Report, paras. 62-64).

78. In a communication dated 29 June 1999, the Government indicates that the Senate amended the State Enterprise Labour Relations Bill and passed the revised Bill in its second and final reading on 2 April 1999. However, the House of Representatives disapproved the amended draft on 7 April 1999. Then a Joint Ad Hoc Committee, consisting of members of the House of Representatives and Senators, was set up for consideration of the Bill. The Government adds that, at present, the State Enterprise Labour Relations Bill is under consideration of the Joint Ad Hoc Committee. In a communication dated 27 October 1999, the Government indicates that the Bill, which was amended by the Joint Ad Hoc Committee, was approved by the Senate but disapproved by the House of Representatives.

79. The Committee notes this information. It urges the Government to ensure that the Bill, in its final form, will be in conformity with freedom of association principles. It requests the Government to keep it informed of any developments in this regard and to provide a copy of the Bill once it has been adopted.

Case No. 1977 (Togo)

80. At its March 1999 meeting (see 313th Report, paras. 220-243), the Committee had requested the Government to take all the necessary measures to ensure that legally established trade union organizations including the Force ouvrière togolaise (FOT), the complainant in the present case, could carry on their activities without any prior authorization or interference by the public authorities, and to ensure that, in accordance with section 5 of the Labour Code, the acknowledgement of filing of the by-laws was issued to the complainant, and to keep it informed of any measures taken in this regard.

81. In a communication dated 30 August 1999, the Government states that it has asked the Minister of the Interior and Security to take all the necessary measures to ensure that the formalities for the registration of trade union organizations comply with the provisions of section 5 of the Labour Code, and that the Minister of the Public Service, Labour and Employment has asked the General Secretary of the FOT to contact the minister responsible for issuing acknowledgments in connection with his request.

82. The Committee notes with concern that the by-laws of the Force ouvrière togolaise (FOT) were filed on 5 April 1995 and that the acknowledgment of filing was requested again by the General Secretary of the FOT on 22 June 1999. The Committee requests the Government to issue without delay the acknowledgement in question, which the FOT has been awaiting for four years in order to be able to carry on its activities freely, and to keep it informed of any measures taken in this regard.

Case No. 1812 (Venezuela)

83. In its last examination of the case in March 1999 (see 313th Report, paras. 270-284), when it considered allegations concerning interference by an employer in the establishment of a trade union, the Committee requested the Government to carry out an investigation into the alleged presence of representatives of the company CORAVEN-RCTV at the constituent meeting of the trade union SINATRAINCORACTEL and alleged threats to dismiss workers who refused to join the new union, and to keep it informed of developments as soon as possible; and, considering it necessary to have the ruling of the Supreme Court of Justice on the matter that had given rise to the complaint, the Committee requested the Government to send it a text of this ruling.

84. In communications dated 12 and 22 October 1999, the Government indicates that the legal representative of the trade union SRTVA sent a communication stating that the organization did indeed initiate proceedings before the Supreme Court of Justice to have the act of registration of the National Trade Union of Workers at CORAVEN-RCTV annulled, but the application was never actually lodged and the act of registration therefore remained in force. In the light of this, the legal representative considers that the complaint brought by the SRTVA before the Committee should be set aside. Given this information from the legal representative of the SRTVA, the Government considers that, since the necessary legal steps were not taken, the case is devoid of the elements necessary for its continued examination.

85. The Committee takes note of this information from the Government, but emphasizes that it contradicts its earlier information according to which the appeal lodged by the SRTVA was ruled to be admissible by the Supreme Court on 5 May 1997 (see 313th Report, para. 274). The Committee regrets that the Government has not acted on its recommendations in which it requested an investigation into the alleged presence of representatives of the company CORAVEN-RCTV at the constituent meeting of the trade union SINATRAINCORACTEL and the alleged threats to dismiss workers who refused to join the new union. The Committee wishes to draw the Government's attention to the fact that, by ratifying Convention No. 98, the Government undertook to respect the principle that organizations of workers and employers must enjoy adequate protection against any act of interference from one another, be it direct or through its agents or members, in their establishment, operations or administration. The Committee hopes that in future the Government will ensure that cases of interference and discrimination will be dealt with severely and that appropriate legal sanctions will be applied.

Case No. 1952 (Venezuela)

86. At its last examination of the case in March 1999 (see 313th Report, paras. 285-303), the Committee: (1) again requested the Government to ensure the reinstatement in their posts of the union officials and members who had been dismissed or transferred (Glácido Gutiérrez, Rubén Gutiérrez, Tomás Arencibia, Juan Bautista and Ignacio Díaz, and a considerable number of union members), and to keep it informed of any decision or ruling that might be handed down; and (2) as regards the allegations concerning the summoning of Tomás Arencibia and Glácido Gutiérrez to appear before a prefecture and the request for a police presence by the Eastern Fire Brigade Association when the union officials in question were at the Association's headquarters, the Committee requested the Government to carry out an investigation into these allegations and, if acts of intimidation or anti-union discrimination were found to have taken place, to take the necessary measures to prevent any recurrence and punish those responsible.

87. In a communication dated 12 October 1999, the Government states that on 8 October 1999 a meeting took place at the headquarters of the Ministry of Internal Relations involving representatives of: the municipal authorities of Baruta, Chacao and Sucre; the Eastern Fire Brigade Association; the Governor of the State of Miranda; the trade union SINPROBOM; and the National Constituent Assembly, with a view to reaching an agreement to stop the hunger strike; an agreement was duly signed providing for the allocation of funds to pay the claims of SINPROBOM members and officials who had been reinstated, including back arrears of wages. The Government indicates that Mr. Tomás Arencibia and Mr. Glácido Gutiérrez enjoy complete physical freedom within the premises of the Eastern Fire Brigade Association, where there is no police presence, and have the use of their own area for union activities, as was evident from the meeting previously referred to at the fire brigade premises between SINPROBOM and Ministry of Labour representatives.

88. The Committee takes note of this information, from which it infers that the trade union officials and members of the complainant organization who were dismissed in 1997 have been reinstated in their posts and that discussions are taking place on payment of wage arrears. The Committee requests the Government to keep it informed in this regard. Lastly, given that the Government has not replied to the allegation concerning the summoning of the trade union officials Tomás Arencibia and Glácido Gutiérrez to appear before a prefecture, the Committee requests the Government to take measures to prevent acts which could be interpreted as intimidation of trade union officials.

Case No. 1937 (Zimbabwe)

89. The Committee last examined this case at its meeting in March 1998 when it urged the Government to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act as revised in 1996 so as to ensure that compulsory arbitration may only be imposed with respect to essential services and in cases of acute national crisis. It further requested the Government to take the necessary measures to ensure that those workers who were dismissed as a result of their participation in the Standard Chartered Bank strike of April 1997 were reinstated in their jobs and entitled to the same conditions of employment and benefits as were enjoyed prior to the strike and to amend section 107(5) of the Labour Relations Act so as to ensure that workers are not discriminated against in their employment for exercising legitimate trade union activity (see 309th Report, para. 452).

90. In a communication dated 31 August 1999, the Government indicates that following a Supreme Court ruling that domestic remedies had not been exhausted in this case, the matter was remitted to the National Employment Council for the Banking Undertakings which ruled in favour of the workers in January 1999. The employers have appealed against this verdict and the case is pending before the Labour Relations Tribunal. As concerns the request to amend the Labour Relations Act, the Government states that the request to limit the imposition of compulsory arbitration to essential services and in cases of acute national crisis should be perceived in the context of what is provided for in the Act and the fact that the Government has an economy to run and affirmed that, absent a universal definition of essential services, the banking sector in the Zimbabwean case was such an essential service. As concerns the request to facilitate the reinstatement of the dismissed workers, the Government indicates that it could not discuss this matter since it is presently before the Labour Relations Tribunal. If the judgement is not in favour of the workers, they may appeal to the Supreme Court. Given the doctrine of separation of powers, judicial processes will decide not only the fate of the workers but also the desirability of the provisions in the Labour Relations Act which were referred to by the Committee.

91. The Committee takes note of the information provided by the Government. It must recall, however, its previous conclusions that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services and that it has already considered that banking is not an essential service. The Committee therefore urges the Government once again to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act in order to bring the legislation into conformity with this principle. Furthermore, recalling that the dismissal of workers because of a legitimate strike constitutes discrimination in employment, the Committee requests the Government to keep it informed of any measures taken to ensure the reinstatement in their jobs of those workers who were dismissed as a result of their participation in the Standard Chartered Bank strike of April 1997 under the same conditions of employment and with the same benefits as were enjoyed prior to the strike, as well as any steps taken to amend section 107(5) of the Act. Finally, it requests to be kept informed of the outcome of the case before the Labour Relations Tribunal on this matter.

92. Finally, as regards Cases Nos. 1769 (Russian Federation), 1785 (Poland), 1793 (Nigeria), 1796 (Peru), 1813 (Peru), 1826 (Philippines), 1844 (Mexico), 1849 (Belarus), 1854 (India), 1862 (Bangladesh), 1869 (Latvia), 1877 (Morocco), 1884 (Swaziland), 1886 (Uruguay), 1890 (India), 1891 (Romania), 1903 (Pakistan), 1908 (Ethiopia), 1914 (Philippines), 1926 (Peru), 1930 (China), 1935 (Nigeria), 1939 (Argentina), 1949 (Bahrain), 1956 (Guinea-Bissau), 1957 (Bulgaria), 1969 (Cameroon), 1972 (Poland) and 1996 (Uganda), 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. 1512/1539 (Guatemala), 1812 and 1895 (Venezuela) and 1843 (Sudan) which it will examine at its next meeting.