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 25 and 26 May and 2 June 2000, under the chairmanship of Professor Max Rood.

2. The member of Mexican nationality was not present during the examination of the case relating to Mexico (Case No. 2070).

3. Currently, there are 83 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 25 cases on the merits, reaching definitive conclusions in 12 cases and interim conclusions in 13 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. 2078 (Lithuania), 2079 (Ukraine), 2080 (Venezuela), 2082 (Morocco), 2083 (Canada/New Brunswick) and 2084 (Costa Rica) 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. 1865 (Republic of Korea), 1986 (Venezuela), 1995 (Cameroon), 2010 (Ecuador), 2012 (Russian Federation), 2014 (Uruguay), 2022 (New Zealand), 2034 (Nicaragua), 2048 (Morocco), 2059 (Peru), 2061 (New Zealand), 2062 (Argentina), 2063 (Paraguay), 2065 (Argentina), 2067 (Venezuela), 2068 (Colombia), 2072 (Haiti), 2073 (Chile) and 2076 (Peru).

Observations requested from complainants

6. In Case No. 2039 (Mexico), the Committee is awaiting specific information from the complainant on the reasons for which it wishes to withdraw the complaint. The Committee requests the complainant to send this information without delay, in the absence of which the Committee may examine the substance of the case.

Partial information received from governments

7. In Cases Nos. 1851, 1922 and 2042 (Djibouti), 1984 (Costa Rica), 2049 (Peru) and 2077 (El Salvador), the Governments have sent partial information on the allegations made. As regards Case No. 1951 (Canada/Ontario), the Committee is awaiting a copy of a court decision that the Government is to transmit as soon as it has been handed down. In Case No. 1991 (Japan), the Committee is awaiting the Government's observations on a recent communication from a complainant. 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. 1953 (Argentina), 1960 (Guatemala), 1980 (Luxembourg), 2006 (Pakistan), 2013 (Mexico), 2021 (Guatemala), 2028 (Gabon), 2037 (Argentina), 2045 (Argentina), 2058 (Venezuela), 2060 (Denmark), 2069 (Costa Rica), 2074 (Cameroon), 2075 (Ukraine) and 2081 (Zimbabwe), 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. 1880 (Peru), 1970 (Guatemala), 2017 (Guatemala), 2035 (Haiti), 2036 (Paraguay), 2043 (Russian Federation), 2050 (Guatemala) and 2053 (Bosnia and Herzegovina), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the case, 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.

Closing a case

10. In Case No. 1835 (Czech Republic), the complainants have not responded to the request made by the Committee to furnish comments on the Government's reply. In view of the time that has lapsed since this request was first made and the number of times it was reiterated, the Committee decides to close this case.

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: Canada/Ontario (Case No. 1975) and Swaziland (Case No. 2019).

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

Case No. 1939 (Argentina)

12. The Committee examined this case at its June 1999 meeting (see 316th Report, paras. 88-101), where it requested the Government:

(a) to keep it informed of the charges brought against the members of the CTA of Cutral-Co, Sandro Botron, Juan Bastías, Cristían Rodríguez, Oscar Chávez, Beatriz Parra, Cristían Valle and Angel Lucero and of the length of their detention;

(b) to keep it informed of the outcome of the judicial investigations as regards the allegations on: (1) the assault on ATE delegate Mr. Jorge Villalba, on 13 June 1997 at Lanús; (2) the death threat made against Ms. Nélida Curto, a member of the administrative committee of ATE-Lanús; (3) the threat against the ATE delegate at the Arturo Melo Hospital, Ms. Ana María Luguercho on 26 June 1997; (4) the death threat against the ATE-Lanús delegate, Mr. Daniel Saavedra; (5) the death threat against the general secretary of ATE-San Martín, Mr. Víctor Bordiera; and (6) the threat against the deputy-general delegate of ATE-General Rodríguez district, Mr. Ricardo Caffieri;

(c) to investigate the allegations concerning the attack on the home of the deputy secretary of ATE, national branch, Mr. Juan Gonzáles, the attack and looting in July 1997 of the ATE premises in Comodoro Rivadavia and Goya, and the request by the Governor of Neuquén province to withdraw legal recognition from the state employees and teaching unions (ATE and ATEN which are affiliated with the CTA), and to keep it informed of their outcome;

(d) to keep it informed of the outcome of the judicial inquiry into the killing of the worker Teresa Rodríguez by police officers during a demonstration organized on 12 April 1997 in Neuquén province in protest against unemployment.

13. In communications of 3 and 9 March 2000, the Government indicates that: (1) the national Government democratically elected which has assumed its functions on 10 December 1999, has once again officially transmitted the conclusions and recommendations of the Committee in this case to the provincial governments involved, a large number of which have also been confirmed in their functions through democratic means. That being the case, it is hoped that this initiative by the new national authorities will lead to a better appreciation of the Committee's conclusions and recommendations, in the provinces where the facts occurred; (2) the police and judiciary authorities have launched an inquiry concerning the alleged attack and looting of the ATE premises in Comodoro Rovadavia, in July 1997; that inquiry is on hold, pending the discovery of new evidence; (3) it has been decided to put on hold, for lack of evidence, the inquiry into the assault on Mr. Jorge Villalba (ATE delegate), and to suspend the inquiry into the death threat made against Ms. Nélida Curto, a member of the administrative committee of ATE-Lanús.

14. The Committee takes note of this information. It hopes that the new Government will transmit in the near future all the information requested when this case was last examined in June 1999, so that the pending issues may be fully examined.

Case No. 1849 (Belarus)

15. During its last examination of this case at its meeting in March 2000, the Committee once again requested the Government to keep it informed of the measures taken to reinstate the workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995 (see 320th Report, paras. 32-34).

16. In a communication dated 22 April 2000, the Government indicates that the strikes in question were declared illegal and the workers at the Gomyel undertaking and the Minsk metro system were dismissed for infringing labour discipline. Applications for reinstatement by a number of the dismissed workers have not been granted by the courts. Former metro workers have been given assistance in finding other employment. The Minsk municipal executive committee in August-September 1995 adopted a number of measures to help individual workers find new jobs. For example, on 28 March 1996 a working commission, including representation from the executive committee, met to discuss the problem of finding jobs for former Minsk metro workers, who were offered the possibility of employment with a new employer or retraining.

17. The Committee takes due note of this information. It must however draw the Government's attention to its conclusions and recommendations when it first examined this case (see 302nd Report, paras. 161-222). At that time, the Committee had recalled that strikes may be prohibited in respect of essential services, but that transport does not generally fall within the category of essential services. It therefore requested the Government to modify its legislation in such a fashion that transport workers unequivocally enjoy the right to strike. Consequently, the Committee also emphasized that the dismissal of workers for taking part in legitimate strike action constituted anti-union discrimination in employment and requested the Government to take the necessary measures without delay to assure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995.

18. While taking note of the efforts to offer employment with a new employer or retraining for these workers, the Committee must express its deep concern that the Government has apparently limited its action on this issue within the context of dismissals for illegal strike action, whereas the Committee has emphasized that the legislation prohibiting such strikes is contrary to the principles of freedom of association. The Committee therefore requests the Government urgently to take the necessary measures to ensure a solution for the dismissed workers who remain without employment which is to their satisfaction and which ensures full compensation for lost wages and to keep it informed of developments in this regard.

Case No. 1997 (Brazil)

19. The Committee last examined this case, which concerns interference by the authorities in the application of a collective agreement, at its meeting in November 1999 (see 318th Report, paras. 16-18). At that time the Committee requested the Government "to keep it informed of whether the enterprises of the Puerto 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".

20. In its communication of 10 April 2000, the Government states that it was not the National Ministry of Labour that had denounced the collective agreement but the Regional Labour Delegation of the State of Río Grande do Sul. The latter had recognized the unlawful nature of a number of clauses in the collective agreement and had notified the parties concerned accordingly, urging them to adhere to the law. After lengthy negotiations, the parties promised the Office of the Regional Prosecutor for Labour to regularize the clauses that had led to the denunciation of the agreement, in order to avoid a lawsuit. The Regional Delegation also asked the trade union organizations that had signed the collective greement to correct the irregularities therein, to which it got the parties to agree. The trade unions themselves recognized the unlawfulness of the clauses that had led to the denunciation of the agreement. The collective agreement had in any case already expired, and the parties concerned agreed that they would meet the commitments that they had entered into with the Regional Delegation and the Office of the Regional Prosecutor as soon as the new collective agreement, which was currently in the process of negotiation, came into force.

21. The Committee takes note of this information.

Case No. 1999 (Canada/Saskatchewan)

22. The Committee last examined this case at its November 1999 meeting (see 318th Report paras. 119-171). On this occasion, it had requested the Government to bring the Maintenance of Saskatchewan Power Corporation's Operations Act, 1998 (Bill No. 65), into conformity with freedom of association principles as well as to explore in the future the possibility of consultations with workers' organizations on the establishment of a budgetary package in the context of public sector collective bargaining.

23. In a communication dated 25 April 2000, the Government indicates that Bill No. 65 will sunset on 31 December of this year and, therefore, the Government is not contemplating repealing the Act. Concerning the issue of consultation in the public service, the Government indicates that the relevant departments and agencies have reviewed the Committee's recommendations and have agreed to take under advisement its specific recommendation to consult on public sector guidelines as well as to consider alternate dispute resolution mechanisms to deal with impasses in collective bargaining.

24. The Committee takes note of this information with interest and trusts that Bill No. 65 will no longer produce effects beyond 31 December 2000.

Case No. 1938 (Croatia)

25. The Committee last examined this case, which concerned allegations of interference in trade union activities and with trade union assets, at its June 1998 meeting (see 310th Report paras. 15-17). On this occasion, the Committee repeated its requests to the Government for it to determine the criteria for the division of immoveable assets formerly owned by the trade unions in consultations with the trade unions concerned should they be unable to reach an agreement among themselves, and fix a clear and reasonable time frame for the completion of the division of the property once the period of negotiation has passed. The Committee also requested the Government to forward a copy of the decision of the Constitutional Court regarding the assessment of constitutionality of the provisions of article 38 of the Act on Associations.

26. In a communication dated 25 February 2000, the Government sends a copy of the decision of the Constitutional Court which was delivered on 3 February 2000 and in which the Court stated that article 38 of the Act on Associations, as a transitional provision, was not contrary to the Constitution.

27. The Committee takes note of the contents of the decision. It requests once again the Government to keep it informed of the remaining above-noted matters.

Case No. 1978 (Gabon)

28. At its meeting in November 1999 (see the Committee's 318th Report, paras. 208 to 219), the Committee deplored the suppression of the trade union structure of the Gabonese Confederation of Free Trade Unions (CGSL) in the SOCOFI and Leroy-Gabon enterprises and the fact that the Government had not replied to these allegations. It requested the Government to take all the necessary measures to guarantee the existence and free functioning of that trade union in the enterprises in question. It also deplored the dismissal of trade unionists for activities connected with the setting up of a trade union or for exercising their right to strike, and requested the Government to take all the necessary measures for the workers to be reinstated in their posts without loss of pay.

29. The Government explains that the labour inspectorate intervened on two occasions following the establishment of a branch of the CGSL at the SOCOFI enterprise. The labour inspectorate had found on the first occasion that the union had been established without prior filing of its by-laws and the names of its officers, and on the second occasion had found that the union branch in question represented only one occupation. The Government maintains that although the CGSL in August 1997 accepted the labour inspectorate's recommendations, it maintained its old trade union structure, with all the consequences that ensued.

30. With regard to the allegations of wrongful repatriation by the Gabon police of Mr. Sow Alliou, a CGSL trade union delegate to SOCOFI, on 2 August 1997, the Government maintains that Mr. Alliou, who has Guinean nationality, had a residence permit which expired on 31 July 1997; he was not expelled from Gabon because he was a trade union delegate but for reasons which the immigration police have yet to specify. The Government also indicates that Mr. Alliou returned to Gabon some months later and found another job and now has a valid residence permit which will not expire until October 2001. The Government also indicates that his previous employer has paid him the compensation owed to him under the terms of his contract and that he and the CGSL have just begun an action for damages which is exclusively a matter for the Gabonese courts.

31. As regards the allegations of dismissals of all the CGSL members at the SOCOFI enterprise in September 1997 following a strike, the Government states that the strike had been declared illegal by a court of first instance and that the matter was now before the appeal court (a copy of the original ruling is supplied).

32. As regards the allegations concerning the suppression of the CGSL trade union structure at the Leroy-Gabon company's "Gongue" forestry works, the Government explains that the intervention of the Koula-Mouton labour inspectorate had the same legal basis as in the CGSL/SOCOFI case and that, contrary to the CGSL's allegations, an ordinary CGSL member had assumed that he would enjoy the same protection as that enjoyed by trade union delegates in the enterprise and accordingly took time off during working hours to engage in trade union activities. In the absence of a list of CGSL delegates at the Gongue forestry works, the labour inspectorate recommended to the supposed delegate that he desist for the time being from his trade union activities, until such time as the union officers were formally appointed and their names communicated to the labour inspectorate. Lastly, the Government states that only a short time after the labour inspectorate made this recommendation, and long before the CGSL's complaint was filed, the Gongue works was abandoned and its employees were transferred following a fall-off in its activities.

33. The Committee takes note of this information. Nevertheless, it greatly deplores the fact that, although the complaint was lodged on 27 July 1998, the Government took nearly two years to send any information at all on the case. The Committee hopes that the Government will be more cooperative in future.

34. As regards the allegations concerning the dissolution of the CGSL trade union structure in the SOCOFI enterprise, the Committee notes the Government's statement to the effect that the labour inspectorate took action at the enterprise because of a failure to comply with regulations on the registration of trade unions. In this respect, the Committee has always considered that, although the founders of a trade union should comply with the formalities prescribed by legislation, those formalities should not be of such a nature as to impair the free establishment of organizations. The Committee also emphasises that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions. Furthermore, it should be possible to appeal to the courts against any administrative decision concerning the registration of a trade union (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 248, 264 and 275). In the present case, the Committee requests the Government to take the necessary measures to ensure the existence and the free functioning of the trade union CGSL in the SOCOFI enterprise, once the union has complied with the registration formalities provided for by law, and to keep it informed in this regard.

35. As regards the allegations concerning the wrongful repatriation to Guinea of Mr. Sow Alliou, a CGSL delegate to the SOCOFI, the Committee notes with concern that, by the Government's own admission, the immigration police are still unable to indicate the precise motives for that expulsion three years after it occurred. The Government also states that the delegate received compensation from his former employer. The Committee believes that it can often be difficult or even impossible for a worker to prove that he or she has been the victim of anti-union discrimination. In its view, it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employees 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 (see Digest, op. cit., para. 707). Noting that Mr. Alliou has just brought an action for damages, the Committee requests the Government to keep it informed of any ruling handed down by the court. It also requests the Government to keep it informed of the decision of the court of appeal concerning the legality of the strike by the CGSL at the SOCOFI enterprise in 1997. If the strike is ruled to have been legal, the Committee trusts that the Government will take all the necessary measures to ensure that the workers concerned are reinstated in their posts without loss of pay.

36. As regards the allegations concerning the suspension of the CGSL trade unions structure at the Leroy-Gabon company's Gongue forestry works, the Committee notes once again that the labour inspector intervened because the union's officers failed to comply with the registration formalities. In this regard, the Committee, while reiterating the principles stated above in relation to the CGSL officers in the SOCOFI enterprise, also notes that the worksite in question was closed and its workers were transferred before the complaint was filed.

Cases Nos. 1512 and 1539 (Guatemala)

37. At its meeting in November 1997, the Committee made the following recommendations concerning certain allegations of grave acts of violence against trade union officials and members that occurred between 1990 and 1994 (see 308th Report, para. 394): "With regard to Cases Nos. 1512 and 1539, the Committee requests the Government to keep it informed periodically of the progress made by the Commission on Historical Clarification in connection with the allegations under review concerning the assassination or disappearance of trade unionists (1990-94)." In its communication of 27 August 1999, the Government stated that the Commission on Historical Clarification had submitted its report.

38. Given that the report in question contains general conclusions on human rights violations that occurred before the peace agreements were signed, the Committee requests the Government to indicate whether the annexes to the report contain specific information on the allegations in the present case and whether it has initiated judicial inquiries in this matter, whether any rulings have been handed down and whether the culprits have been punished.

Case No. 1974 (Mexico)

39. The Committee last examined this case relating to the dismissals of trade union officials and threats of arrest at its meeting in November 1999 (see 318th Report, paras. 298-308). On that occasion, the Committee made the following recommendation:

The Committee requests the Government to ensure that the union officials belonging to the Executive Board of the Single Trade Union for Employees of the State, Municipal Authorities and Decentralized Industries in Nayarit (SUTSEM) who were dismissed for their participation in a strike in March 1998 are reinstated in their posts without loss of pay. The Committee requests the Government to keep it informed of any measures taken in this regard.

40. In a communication dated 9 May 2000, the Government states that the members of the Executive Board of the said trade union organization were not dismissed from the jobs for which they were mandated as trade union officials. It adds that at no moment were they deprived of their wages which they continued to receive especially since the corresponding labour proceedings were dismissed and annulled any action that might have prejudiced their employment relations and their wages.

41. The Committee takes note of this information.

Case No. 2020 (Nicaragua)

42. The Committee last examined this case, which concerns dismissals and other anti-union measures - seizure of union offices and confiscation of property - at its meeting in November 1999 (see 318th Report, paras. 309-323). At the time the Committee had made the following recommendations:

(a) The Committee requested the Government to endeavour to secure the reinstatement of the 367 dismissed workers, at least until the courts have given a ruling on the matter.

(b) The Committee requested the Government to keep it informed of developments in the collective talks at ENITEL.

(c) The Committee requested the Government to carry out an independent investigation into the seizure of trade union premises and the confiscation of trade union papers and other property in León, Chinandega, Granada and Matagalpa by paramilitary units and, if these allegations are found to be true, to take the necessary measures to ensure the immediate return of the premises, papers and property to the trade unions concerned and to ensure that the persons responsible are brought before the competent court.

(d) The Committee requested the Government to take measures to begin an independent inquiry into the allegations concerning pressure in the form of threats of dismissal to persuade workers to relinquish the benefits of the collective agreement and their representation by the complainant and, if they are found to be true, to ensure that these workers in positions of trust can choose freely whether or not to be covered by the collective agreement and be represented by the trade union organization.

(e) The Committee requested the Government to take measures to carry out an independent investigation into the allegations concerning the pressure applied to force workers to leave the complainant organization and, if the allegations are found to be true, to take appropriate steps to apply administrative and legal sanctions and to prevent any future recurrence of such acts. The Committee requested the Government to keep it informed in this regard.

43. In a communication dated 22 March concerning the reinstatement of the 367 dismissed workers, the Government states that the authorization to dismiss a number of former employees of ENITEL for abandoning their duties on 19 October 1998 was justified. Moreover, the 312 workers who accepted settlements cannot be reinstated as the matter has been resolved once and for all. Regarding the workers who did not accept settlements, on the other hand, the Government cannot determine whether or not their reinstatement is justified, even temporarily, as that would constitute interference by the Executive in matters that come within the purview of Judiciary. Finally, the Government states that the workers and employers reached a satisfactory agreement in the course of the conciliation procedure, wherein the workers negotiated and accepted the conditions of their cessation of work and explicitly notified the judicial authorities that they were abandoning their demand for reinstatement.

44. The Committee regrets that the Government has not interceded on behalf of the dismissed workers and recalls the principle that it would not appear 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 (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 707).

45. The Government further states that ENITEL signed a new collective agreement with the complainant organization and its two other trade union associations on 28 February 2000 (the new trade union executive board took up office on 16 January 1999).

46. The Committee takes note of this information.

47. Regarding the allegations that trade union premises were seized and various trade union papers confiscated, the Government states that there are no paramilitary units in Nicaragua and that no trade union premises were seized.

48. The Committee regrets that the Government has not provided any information on the outcome of the administrative appeal lodged by the complainant organization in this respect or on the findings of the independent investigation into these allegations that had been requested. The Committee therefore recalls that the right of the inviolability of trade union premises also necessarily implies that the public authorities may not insist on entering such premises without prior authorization of their occupants or without having obtained a legal warrant to do so (see Digest, op. cit., para. 175).

49. The Government further gives its assurances that no pressure was exercised on the workers to induce them to relinquish the benefits of the collective agreement with ENITEL and also that no pressure was brought to bear on the workers to force them to leave the complainant organization.

50. The Committee observes that, in its reply, the Government does not provide sufficient information concerning the pressure allegedly brought to bear on the workers to persuade them to relinquish their representation by the complainant organization and to leave it, or to the outcome of the independent inquiry that had been called for into these allegations. It recalls that when examining various cases in which workers who refuse to give up the right to collective negotiation were denied (certain rights), the Committee considered that it raised significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1(2)(b) of Convention No. 98 (see Digest, op. cit., para. 913). It also emphasizes that workers (...) without distinction whatsoever have the right to establish and (...) to join organizations of their own choosing without previous authorization (see Article 2 of Convention No. 87).

Cases Nos. 1793 and 1935 (Nigeria)

51. During its last examination of this case in March 1999 (315th Report, paras. 1-26), the Committee urged the Government to amend the Trade Unions Act in order to ensure the right of workers to form and join the union of their own choosing at all levels, to take the necessary measures to repeal section 7(9) which confers overly broad powers on the Minister to cancel trade union registration and to amend the legislative requirement to include "no-strike" and "no lock-out" clauses in collective agreements in order to benefit from check-off facilities. Furthermore, the Committee urged the Government to amend the International Affiliation Decree so as to ensure that workers' organizations may affiliate with the international workers' organization of their own choosing free from interference by the public authorities.

52. In a communication dated 9 March 2000, the Government reiterates a number of measures it had taken to ensure greater conformity with the principles of freedom of association and which were taken into account when the Committee last examined this case. It expresses the hope that the comprehensive details of the measures taken by the Government to redress all the complaints in Cases Nos. 1793 and 1935 will receive the approval of the Committee.

53. The Committee takes note of this information. It refers the Government once again to the conclusions and recommendations made when it last examined this case in March 1999 and requests the Government to keep it informed of any developments in this respect.

Case No. 1931 (Panama)

54. At its meeting in November 1999, the Committee had formulated definitive conclusions on this case and in particular had requested the Government to consider amending certain provisions in its legislation which presented problems in terms of conformity with Conventions Nos. 87 and 98 (see 318th Report, paras. 353-371). In its communications of 24 January and 8 May 2000, the Government states that in its view, such recommendations should be based on consensus and consultations, and has begun general consultations with the social partners, with a view to reconciling the different views and the Committee's recommendations. The majority of workers' organizations consulted and which had replied did not indicate agreement with the Committee's recommendations. The Committee notes this information and requests the Government to keep it informed of the outcome of these consultations.

Case No. 1967 (Panama)

55. At its meeting in November 1999, the Committee noted "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".

56. In its communication of 4 February 2000, the Government, referring to the registration of FENASEP, states that the previous Minster of Labour on his final day in office acted in a way that flew in the face of legal judgement by formally recognizing the affiliation of FENASEP to the Joint Trade Union Central; this created a legal quandary for the incoming Government, since the official decision in question was signed by persons not competent to do so and violated constitutional and legal provisions in force, making it necessary to issue a new decision overruling the original one. The Government adds that registration of FENASEP as being affiliated to the Joint Trade Union Central would be against FENASEP by-laws. Following a long legal clarification, the Government adds that FENASEP could hardly comply with the National Constitution (the Carta Magna), the Labour Code and the Act respecting the administrative service, by affiliating to the Joint Trade Union Central, an act which would constitute a total violation of all three. At the same time, under the terms of article 18 of the Constitution of Panama, public servants may do only that which the law specifically empowers them to do and are liable for any acts exceeding their powers or for any omissions in carrying out their duties. Ministry of Labour officials could therefore not recognize and register the affiliation of a public service union to a private sector trade union organization without breaking the law, which is absolutely clear that this is the sole responsibility of the Directorate of the Administrative Service (Dirección de Carrera Administrativa) and specifically in the case of public service federations and confederations.

57. The Committee deeply deplores the administrative decision overruling the original decision to register FENASEP as being affiliated to the Joint Trade Union Central, and recalls the Government's international obligations arising from ratification of Convention No. 87, in particular Article 5, according to which "Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers." The Committee requests the Government to recognize and re-register the affiliation of FENASEP to the Joint Trade Union Central organization without delay and to keep it informed on this matter.

Case No. 1796 (Peru)

58. At its meeting in March 1999, the Committee requested the Government to keep it informed of the final outcome of the proceedings concerning the dismissals of trade union leaders Delfín Quispe Saavedra and Iván Arias Vildosa (see 313th Report, paras. 46-48).

59. In a communication dated 8 February 2000, the Government states that: (1) the proceedings initiated by Mr. Delfín Quispe Saavedra are at the final ruling stage, since the Mixed Court of Chimbote has overturned the ruling of the lower court; and (2) in the proceedings for Mr. Iván Arias Vildosa claiming that his dismissal was invalid, the complainant has been granted leave to appeal against the original ruling of the Labour Court, which had upheld the dismissal, and the case will be brought before the Supreme Court.

60. The Committee takes note of this information, and requests the Government to keep it informed of the final outcome of the proceedings involving the trade union leaders in question.

Case No. 1813 (Peru)

61. At its March 1999 meeting (see 313th Report, para. 49), the Committee requested the Government to keep it informed of the final outcome of the proceedings concerning the death of the trade unionists Alipio Chueca and Juan Marco Donayre Cisceros as a result of shots fired by CORDECALLAO security staff (the Government had stated that three persons had been charged). In a communication dated 8 February 2000, the Government states that the proceedings in question are still in progress.

62. The Committee notes this information. It deeply regrets that the facts of the case have not yet been clearly established and that those responsible for the killings in question, which took place in 1994, have not been identified and punished. In this context, the Committee draws the Government's attention to the fact that it has on numerous occasions emphasized that "The absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights." (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 55). Under these circumstances, the Committee hopes that the proceedings currently under way will be concluded in the near future and requests the Government to keep it informed of the final outcome.

Case No. 1926 (Peru)

63. The Committee last examined this case at its meeting in June 1998 and on that occasion requested the Government to: (1) take the necessary steps to recognize the SUTREL trade union sector's right to represent its members and to bargain collectively on conditions of employment, at least on behalf of its own members; and (2) communicate the findings of the investigation into the alleged anti-union dismissals of officers of several trade union organizations (all the leaders of the Union of Backus and Johnson Brewery Workers and of the Brewery Federation of Peru, the northern region undersecretary of the CGTP, officers of the Single Union of Lighting and Power Workers of Electro Ucayali and an officer of the Single Union of Workers of Electroperú of the Interconnected System) (see 310th Report, paras. 48-52).

64. In a communication dated 8 February 2000, with regard to the matter of recognition of the SUTREL trade union sector's right to represent its members and bargain collectively on conditions of employment, at least on behalf of its own members, the Government states that the administrative authorities declared inadmissible the list of demands presented by the trade union sector in question, and as a result of this the company Luz del Sur S.A. signed a collective agreement with the majority of its employees, it being agreed that the benefits would be enjoyed by all the workers, since the agreement in question had been concluded with 50 per cent of the workforce.

65. The Committee takes note of this information. It draws the Government's attention to the fact that it has stated on many occasions that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 785). Under these circumstances, the Committee requests the Government to take the necessary measures to ensure that the Unified Trade Union of Electricity Workers of Lima and Callao (SUTREL) can bargain collectively on its members' conditions of employment. Lastly, the Committee deeply regrets the fact that the Government has not supplied any information on the findings of the investigation - which it had announced in 1998 - into the alleged dismissals of a large number of trade union officers in 1997. Under these circumstances, the Committee requests the Government to take measures to ensure that the investigation in question is concluded in the near future and, if it is found that the trade union officials in question were dismissed because of their status of trade union officers or trade union activities, that they are immediately reinstated in their posts and receive any arrears of wages owed to them.

Case No. 1785 (Poland)

66. At its March 1999 meeting, the Committee had noted with interest the detailed information provided by the Government on the issue of cash compensations to trade union organizations and assignations of real estate property to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ) (see 313th Report, paras. 55-61).

67. In a communication dated 23 February 2000, the Government indicated that, as of June 1999 (the deadline for submitting motions to the Social Commission for Revindication) 1,793 proceedings had been filed with the Commission concerning the restitution of assets forfeited by trade unions and social organizations under martial law. As of 31 January 2000, 1,287 of these proceedings have been completed and the Social Commission plans to finalize all cases by the end of 2001. The total amount of the current state Treasury liabilities is estimated at approximately PLN220 million. As regards non-cash liabilities, authorized organizations have the right to choose between two forms of compensation: state Treasury bonds, or a transfer of right to assets' components belonging to the state Treasury or to municipalities. Other liabilities resulting from decisions of the Commission, and which became final in December 1999, will be discharged in cash.

68. While the Government remains convinced that the legal status, and the possible division of the assets of the former Trade Unions' Association (CRZZ) and of the other trade union organizations liquidated under martial law, should be fully settled, the preliminary work in this respect has been delayed due to the complexity of the legal and factual situation of the assets, and to incomplete documentation. The Government is considering whether some legislative initiative should be taken to address this problem, which was not covered by the Act of 23 May 1991 on trade unions. Before taking such initiative, however, the Government asked in December 1999 the National Commission of NSZZ "Solidarnosc" to submit proposals in this respect.

69. The Government adds updated information on two issues which are related to the complaint. Firstly, the OPZZ had challenged a decision of the Minister of Labour of 9 October 1998 denying it entitlement to some PLN25 million (representing a transfer of assets, back in 1985, from the former Trade Unions' Association to OPZZ); on 10 November 1999, the Supreme Administrative Court dismissed the OPZZ's appeal; the National Commission of NSZZ "Solidarnosc" participated in these proceedings as intervener. Secondly, the draft Act concerning the assets of the liquidated Employees' Recreation Fund has been submitted to the Sejm (Lower House of Parliament) in accordance with a Senate's resolution; in June 1999, the Government presented its comments and proposals concerning that draft, and legislative work is being pursued in Parliament.

70. The Committee notes with interest the detailed information provided by the Government and in particular that the Social Commission plans to finalize all pending proceedings by the end of 2001. While aware of the complexity of factual and legal issues involved, the Committee once again expresses the hope that all remaining issues concerning trade union assets will be finally settled in the near future, and asks the Government to keep it informed in this regard.

Case No. 1972 (Poland)

71. At its June 1999 meeting, the Committee examined this case which concerned three sets of allegations by three different trade unions (see 316th Report, paras. 681-709).

72. Firstly, as regards the complaint made by the All Poland Trade Union Alliance (OPZZ), the Committee requested the Government to ensure that measures be taken to promote consultation and cooperation between the public authorities and the social partners before legislation affecting their interests is adopted; the Committee also encouraged the Government and OPZZ to negotiate an agreement for the settlement of collective disputes. Secondly, concerning the complaint made by the Warsaw Trade Union of Self-Government Employees (WZZPS), the Committee asked the Government to send it a copy of the judgement concerning the dismissal of Mrs. Sikorka-Mrozek, Chairperson of the Board of WZPPS, and to obtain her reinstatement if that dismissal was found to be related to the exercise of legitimate trade union activities; the Committee further requested the Government to confirm that WZZPS could perform its legitimate activities in appropriate premises. Thirdly, with respect to the complaint made by the trade union "Sprawiedliwosc", the Committee asked to be kept informed of the outcome of the appeal lodged by Mr. Marek Grabowski, Chairman of Sprawiedliwosc, against his dismissal and to ensure that he be reinstated if it was proven to be discriminatory; the Committee further asked the Government to indicate whether Sprawiedliwosc was able to perform its trade union activities normally.

73. The Government provided the information requested in communications of 23 February and 9 May 2000.

74. As regards the issues raised by Sprawiedliwosc, the Government states firstly that, on 7 April 1999, the Labour Division of the Regional Court reversed the verdict of the Court of First Instance (which had ordered the reinstatement of Mr. Grabowski in his functions) and returned the case to the lower court for further examination in accordance with the recommendations of the appellate body. The Government further submits that Sprawiedliwosc was allowed to carry out its normal activities and that the two allegations raised by Mr. Grabowski in this respect are unfounded: the latter had requested his employer (GP KPRM) to use the company mobile phone to communicate with members of the trade union, which the employer refused as going beyond its responsibilities, as defined in article 33 of the Law of 23 May 1991 on Trade Unions; furthermore, there was an ample network of stationary phone lines in the facility, which he could use to communicate with union members. In addition, Mr. Grabowski was never instructed that he could not enter the employer's premises; the trade union management was informed in a letter of 14 July 1998 that they could access the premises, which access was actually given on 1 November 1998, but the union has not used it to date.

75. The Committee takes note of this information. It requests the Government to provide it with the final court decision concerning the dismissal of Mr. Grabowski as soon as it is issued, and concludes that the other aspects of this particular complaint do not call for further examination.

76. Concerning the WZZPS' allegations, the Government provided the text of the final judgement issued by the Regional Court regarding the dismissal of Mrs. Sikorska-Mrozek, confirming the decision of the Court of First Instance that she had been dismissed not because of her trade union activities, but due to her inadequate performance. The Government also confirms that premises have been made available to WZZPS in a building situated in the Zoliborz District (the seat of WZZPS, under their own statutes), so that they may carry out their trade union activities.

77. The Committee takes note of this information. Recalling the importance it attaches to the principle that complaints of anti-union discrimination should be examined in the framework of national procedures which are prompt, impartial and considered as such by the parties concerned (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, para. 738), the Committee concludes that these conditions appear to have been met in the circumstances. The Committee further notes on the basis of the information provided that appropriate premises were put at WZZPS' disposal for their trade union activities.

78. As regards the allegations of OPZZ, the Government welcomes the Committee's recognition that the principle of consultation seems to be respected in the vast majority of cases. It stresses that the practice of consultation on draft legislation is well established and that deviations from this practice are rare and isolated. Nevertheless, all Ministers and Directors of central government agencies have been reminded, through a circular letter, of the requirement to consult with social partners; the Government will spare no effort in this respect. Concerning the alleged failure to agree with OPZZ on a procedure for the settlement of disputes, the Government submits that the fact that such a procedure has been established with Solidarnosc and not with OPZZ should not be interpreted as a case of unequal treatment between trade unions. In fact, the agreement concluded in 1992 with Solidarnosc, while still formally in force, has outlived its purpose with the establishment in 1994 of the Tripartite Social and Economic Commission, which provides a suitable institutional forum for the settlement of disputes, and to forge consensus on reforms of national importance. The Government regrets that OPZZ has suspended its participation in the work of the Commission. With a view to giving the Commission a solid legal foundation, the Government has prepared draft legislation, which is currently in the final stages of consultations between agencies and with social partners. Since that draft legislation provides that the Commission will be a forum for consultations and negotiation of social issues with social partners, no purpose would be served by negotiating a bilateral agreement with OPZZ.

79. The Committee notes with interest that all Ministries and government agencies have been reminded of the need to consult with social partners on draft legislation, and hopes that this directive will be fully applied in the future. As regards the arrangements for the settlement of collective disputes, the Committee notes that a new legislation, extending the mandate of the National Tripartite Commission, is currently being drafted, hopefully through consultation with all social partners, including OPZZ. The Committee requests the Government to provide it with the text of the Act as soon as it is adopted.

Case No. 1884 (Swaziland)

80. During its last examination of this case at its meeting in November 1998, the Committee once again expressed the firm hope that the Industrial Relations Bill would be adopted in the very near future and that, in its final form, it would ensure full respect for the principles of freedom of association. It further expressed the firm hope that, with the passage of this Bill, the 1973 Decree and the 1963 Public Order Act would no longer be used to suppress legitimate trade union activities. Finally, the Committee once again urged the Government to establish independent investigations into the death of the 16 year-old schoolgirl during the January 1996 stay-away, the abduction of Jan Sithole in August 1996 and the dismissal of Jabulani Nxumalo (see 311th Report, paras. 85-88).

81. In a communication dated 2 May 2000, the Government indicates that the recommendations of the Committee and those of the Committee on the Application of Conventions and Recommendations were taken on board in every legislative structure when the Industrial Relations Bill was being processed to become law. The Government states that the Bill has passed through both houses of Parliament and is now only awaiting the assent of the Head of State. Regarding the need to set up commissions of innquiry into the abduction of Mr. Sithole, the death of the schoolgirl and the dismissal of Mr. Nxumalo, the Government adds that its position has not changed.

82. The Committee takes note of this information. It notes in particular that, while the Industrial Relations Bill has apparently now been passed by Parliament, it still needs the assent of the Head of State to enter into force. The Committee must therefore recall that two years have passed since the Government first indicated that the Industrial Relations Bill had been drafted with a view to bringing national legislation and practice into conformity with the freedom of association principles and standards. The Committee therefore requests the Government to take the necessary measures as a matter of urgency to ensure that the Industrial Relations Bill enters into force in the near future and to keep the Committee informed of developments in this regard. As concerns the remaining matters raised in this complaint, the Committee must express its deep regret at the Government's refusal to carry out independent investigations in respect of the killing of a schoolgirl during the 1996 stay-away, the abduction of Mr. Sithole and the dismissal of Mr. Nxumalo.

Case No. 2018 (Ukraine)

83. The Committee last examined this case at its November 1999 meeting (see 318th Report paras. 473-516), which concerned among other things allegations of anti-union harassment, violations of the right to strike and physical threats against the president of the union. On this occasion, it had formulated the following recommendations:

With regard to the allegations that pressure was brought to bear on members of the complainant union by their employer, the Ilyichevsk Maritime Commercial Port, to leave the union, the Committee, recalling that proof of such inducement by an employer to leave a union can be very difficult when workers fear losing their jobs, requested the Government to order a new inquiry by an independent body enjoying the trust of both parties, with a view to establishing the circumstances of the resignations from the union and assessing the reliability of the allegations; if it is found that pressure was brought to bear on the workers to leave the union, the Committee requested the Government to ensure that this does not recur and to keep it informed of the outcome of the inquiry.

As regards the allegation concerning the use of the employer's own funds to set up a young workers' association, the Committee requested the Government to ensure that the functions carried out by the association in question do not encroach on the normal activities of a trade union organization.

As regards the allegations concerning the workforce meeting, the Committee requested the Government to ensure that activities which naturally pertain to a trade union are carried out by independent trade union organizations, and in particular that workers' collectives do not encroach on the normal functions of trade unions, particularly in matters relating to strikes and collective bargaining.

As regards the court rulings that the strike planned for 7 September 1998 was illegal, the Committee, emphasizing that the ports do not constitute essential services in which strikes might be prohibited, although they are important public services in which a minimum service might be required in the event of a strike, requested the Government to amend section 18 of the Transport Act in order to ensure that it cannot be construed as allowing the prohibition of strikes in ports.

The Committee expressed its concern at the serious nature of the allegations concerning physical and legal threats against the president of the complainant union and against the union itself (seizure of financial records, closure of bank accounts, pressure on workers, infringements of freedom of movement, an attempt to abduct the president of the NPRP), and requested the Government to ensure that the inquiry which the State Prosecutor's Office had been ordered to conduct was carried out with diligence, and to keep it informed in this regard.

84. In its communication dated 30 March 2000, the Government indicates firstly that, with regard to the allegations of pressure by management on the members of the complainant union with the aim of forcing them to leave the union, the Commission of the Ministry of Labour and Social Policy and the Ministry of Transport did not find a single instance of pressure on the said workers. The Government insists that the port workers only withdrew from the complainant organization in order to join other trade unions that were active in the port and which they considered more effective to defend their interests.

85. While taking note of this information, the Committee regrets that the Government did not order a new inquiry by an independent body on this issue and reiterates its requests to the Government on this aspect of the case and asks it to keep it informed in this regard.

86. Concerning the allegation regarding the use of the employer's own funds to set up a young workers' association supposedly signatory of a no-strike agreement, the Government explains that the members of this organization are young workers who are members of five different trade unions established in the port and that its aim is youth work, the development of sports and excursions and the organization of young people's leisure. The Committee, while taking note of this information, once again asks the Government to ensure that the functions carried out by the association in question do not encroach on the normal activities of a trade union organization.

87. As regards the court rulings that the strike planned for 7 September 1998 was illegal, the Government emphasized that the strike was declared illegal primarily because it violated the provisions of the Act on the settlement of collective labour disputes and not for violating section 18 of the Act of Ukraine respecting transport, which prohibit strikes in the transport sector. However, the Government indicates that the Ministry of Transport is currently drafting provisions amending and supplementing the Transport Act, which will include changes relating to the holding of strikes in this sector.

88. The Committee takes note of this information. It recalls once again that the ports do not constitute essential services in the strict sense of the term in which strikes might be completely prohibited and asks the Government to keep it informed of all relevant amendments to the Transport Act in this regard.

89. As regards the criminal charges initiated against the president of the complainant organization, the Government indicates that the case and the charges have been referred to the Ilyichevsk municipal court.

90. The Committee takes note of the information and, in view of the serious nature of the allegations, it urges the Government to ensure that the proceedings are carried out with diligence and requests it to keep it informed in this regard.

Case No. 2038 (Ukraine)

91. The Committee last examined this case at its November 1999 meeting (see 318th Report, paras. 517-533). On this occasion, it had requested the Government, in consultations with all trade unions concerned, to take all necessary measures to bring sections 11 and 16 of the Act on Trade Unions, their Rights and Safeguard of their Activities into full conformity with the provisions of Convention No. 87. These two sections dealt in particular with requirements regarding territorial competence, number of union members and registration formalities.

92. In a communication dated 25 April 2000, the Government indicates that on 24 February of this year, at the initiative of the president of the All-Ukrainian Confederation of Workers' Solidarity and the president of the Confederation of Free Trade Unions of Ukraine, the question of sections 11 and 16 of the Act was discussed at a session of the National Council on Social Partnership (NSSP) which comprises, on a parity basis, 22 representatives of the Government, the trade unions and the employers of Ukraine. After taking into consideration the statement of these trade union leaders, the NSSP requested the Constitutional Court to speed up its examination concerning the constitutionality of the Act. The Government indicates that the NSSP also suggested to the trade union side to further examine the issue, taking into account the decision of the Constitutional Court, and after holding additional consultations among themselves, submit acceptable and concerted proposals for possible amendment of certain sections of the Act to the NSSP. The Government states that this issue will continue to be examined and further consultations and negotiations will be held with the trade unions, of which the ILO will be kept informed.

93. The Committee takes due note of this information. It once again requests the Government to kept it informed of all relevant developments concerning the possible amendment of sections 11 and 16 of the Act on Trade Unions, their Rights and Safeguards of their Activities in line with the principles of freedom of association. The Committee draws the Government's attention to the availability of the ILO's technical assistance in this regard.

94. Finally, as regards Cases Nos. 1581 (Thailand), 1618 (United Kingdom), 1698 (New Zealand), 1769 (Russian Federation), 1826 (Philippines), 1843 (Sudan), 1854 (India), 1890 (India), 1895 (Venezuela), 1908 (Ethiopia), 1914 (Philippines), 1930 (China), 1937 (Zimbabwe), 1942 (China/Hong Kong Special Administrative Region), 1944 (Peru), 1949 (Bahrain), 1954 (Côte d'Ivoire), 1957 (Bulgaria), 1959 (United Kingdom/Bermuda) 1963 (Australia), 1966 (Costa Rica), 1977 (Togo), 1988 (Comoros), 1989 (Bulgaria), 1992 (Brazil), 1994 (Senegal), 1996 (Uganda), 1997 (Brazil), 1998 (Bangladesh), 2004 (Peru), 2007 (Bolivia), 2008 (Guatemala), 2009 (Mauritius), 2023 (Cape Verde), 2024 (Costa Rica), 2027 (Zimbabwe), 2044 (Cape Verde) and 2047 (Bulgaria), the Committee requests the governments concerned to keep it informed of any developments relating to these cases. It hopes that these governments will quickly provide the information requested. In addition, the Committee has just received information concerning the following cases: 1952 (Venezuela) and 1993 (Venezuela), which it will examine at its next meeting.