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 8, 9, 10 and 16 March 2001, under the chairmanship of Professor Max Rood.

2. The members of Panamanian, Venezuelan, Mexican and Danish nationality were not present during the examination of the cases relating to Panama (Case No. 1965), Venezuela (Cases Nos. 1986, 2067 and 2080), Mexico (Case No. 2013) and Denmark (Case No. 2060), respectively.

3. Currently, there are 82 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 46 cases on the merits, reaching definitive conclusions in 32 cases and interim conclusions in 14 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. 2107 (Chile), 2110 (Cyprus), 2111 (Peru), 2112 (Nicaragua), 2113 (Mauritania), 2114 (Japan), 2115 (Mexico), 2116 (Indonesia), 2117 (Argentina) and 2118 (Hungary), 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. 2017 (Guatemala), 2050 (Guatemala), 2095 (Argentina), 2096 (Pakistan), 2103 (Guatemala) and 2105 (Paraguay).

Partial information received from governments

6. In Cases Nos. 1995 (Cameroon), 2049 (Peru), 2068 (Colombia), 2094 (Slovakia) and 2097 (Colombia), the Government has 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

7. As regards Cases Nos. 1888 (Ethiopia), 1951 (Canada/Ontario), 2079 (Ukraine), 2082 (Morocco), 2087 (Uruguay), 2088 (Venezuela), 2098 (Peru), 2099 (Brazil), 2100 (Honduras), 2102 (Bahamas), 2104 (Costa Rica), 2106 (Mauritius), 2108 (Ecuador) and 2109 (Morocco), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeal

8. As regards Case No. 2052 (Haiti), the Committee observes that, despite the time which has elapsed since the submission of the complaint, it has not received the observations of the Government. The Committee draws the attention of the Government 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 this case if its observations or information have not been received in due time. The Committee accordingly requests the Government to transmit or complete its observations or information as a matter of urgency.

Direct contacts mission

9. As regards Case No. 1970, the Government of Guatemala states in its communication of 20 February 2001 that it accepts the sending of a mission, as proposed by the Committee on Freedom of Association at its November 2000 meeting (see 323rd Report, para. 284), and that it henceforth offers all necessary cooperation so that the mission may take place without delay. The Committee hopes that it will be possible to hold this mission, as part of the follow-up to its recommendations in Case No. 1970, and requests the Office to organize it with the Government.

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

10. The Committee considered that it should especially draw the Governing Body's attention to certain cases due to the seriousness and urgency of the issues raised in them. These cases concern the following countries: Djibouti (Cases Nos. 1851, 1922 and 2042) and Haiti (Cases Nos. 2035 and 2072).

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: Ukraine (Case No. 2038), Belarus (Case No. 2090), Bosnia and Herzegovina (Case No. 2053), Canada/New Brunswick (Case No. 2083), Lithuania (Case No. 2078), Luxembourg (Case No. 1980), Romania (Case No. 2091) and Venezuela (Case No. 2067).

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

Case No. 1949 (Bahrain)

12. The Committee last examined this case at its meeting in November 2000 when it once again urged the Government to take the necessary measures to bring its legislation, in particular Orders Nos. 9 and 10 of 1981, into line with the principles of freedom of association so that workers' right to organize freely is effectively guaranteed. It also recalled that the technical assistance of the Office was available should the Government so desire (see 323rd Report, paras. 25-27). In a communication dated 8 January 2001, the Government indicates that the Executive Council of Labour and Social Affairs Ministers signed a Memorandum of Understanding with the ILO in November 1999 and that in the framework of this Memorandum, the Government will endeavour to benefit from ILO technical assistance and will keep the ILO informed of any development regarding the revision of its labour legislation.

13. The Committee takes note of this information. It once again expresses the firm hope that the labour legislation, and in particular Orders Nos. 9 and 10 of 1981, will be brought into line with the principles of freedom of association so that workers' right to organize freely is effectively guaranteed. It again requests the Government to keep it informed of all measures taken or envisaged to amend the legislation in this respect.

Case No. 1998 (Bangladesh)

14. At its March 2000 meeting, the Committee examined this case concerning allegations of denial of the right of trade union officers to leave the country to participate in international trade union meetings as well as acts of anti-union discrimination, in particular the transfer of a number of trade unionists employed by the Bangladesh Water Development Board (BWDB) (see 320th Report, paras. 242-256). The Committee called on the parties to come to an agreement on the frequency of attendance to international trade union meetings by trade union officers, which would take into account the nature of their work and responsibilities within the BWDB. The Committee had also requested the Government to conduct investigations into the allegations of victimization through transfers of 76 persons, and in this context requested the complainant to provide further information. The Committee also called on the Government to guarantee that the rulings of the Labour Appeal Tribunal against several of the transfer orders are applied.

15. In a communication dated 24 October 2000, the Government states that the management of Bangladesh Water Development Board carried out an extensive inquiry into the allegations of denial of permission to participate in international meetings, and found that there had been no such denials. Noting, however, that this conflicts with the former information provided by the Government to the effect that there had been some refusals due to work exigencies, the Committee again calls on the parties to come to an agreement on the frequency of attendance at such meetings, taking into account the nature of the work and the responsibilities within the organization.

16. Concerning the allegation of anti-union discrimination against trade unionists in the form of transfers, the Government states that the management of BWDB have re-established the inquiry committee to investigate this matter further. The inquiry committee had previously asked the complainant to provide it with detailed information concerning the 76 employees to facilitate the investigation; however, the Government states that such information has not been forthcoming. The Government points out that the Committee also requested the complainant to provide this additional information. In the absence of this information, the Government could only repeat the previous findings of the inquiry committee. In this context, the Committee can only regret that the complainant did not provide the additional information requested by the Government and the Committee.

Case No. 1849 (Belarus)

17. The Committee last examined this case at its June 2000 meeting when it requested the Government urgently to take the necessary measures to ensure a satisfactory solution, including full compensation for lost wages, for the Minsk metro workers and Gomyel trolleybus drivers who were dismissed for having undertaken strike action (see 321st Report, paras. 15-18.)

18. In a communication dated 4 October 2000, the Government provided a full list of all 56 Minsk metro workers and 15 Gomyel trolleybus drivers who had been dismissed and their current employment status.

19. The Committee takes due note of this information. In particular, it notes that 19 of the Minsk metro workers have now found other employment, mostly through the national employment services, while the remaining 37 have been said to have "not applied" to the national employment services. No further information is given on the efforts made to provide satisfactory employment solutions to these latter workers, nor is there any mention of any compensation for lost wages. As for the Gomyel trolleybus drivers, the Committee notes from the information provided that 12 out of the 15 workers concerned appear to have been reinstated, while three others are simply described as unemployed. Again, no information has been given on any compensation provided for lost wages following their dismissal for the exercise of legitimate trade union activity.

20. The Committee is bound once again to emphasize that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination and recall its previous recommendation when it first examined this case in 1996 that the workers who were dismissed in connection with the strikes in Minsk and Gomyel in August 1995 should be ensured reinstatement in their jobs without delay (see 302nd Report, para. 222). Given that six years have elapsed since these workers were dismissed, the Committee can only once again request the Government to take the necessary measures, as a matter or urgency, to ensure a satisfactory solution for the situation of the remaining unemployed workers, including full compensation for the lost wages of all those dismissed.

Case No. 1992 (Brazil)

21. The Committee last examined this case (concerning dismissals following a strike and other anti-union acts) at its meeting in November 2000 (see 323rd Report, paras. 32-34). On that occasion, the Committee requested the Government to inform it of the final outcome of all pending judicial proceedings concerning the 54 workers of the Brazilian Post and Telegraph Enterprise (ECT) who were dismissed after the strike held in September 1997.

22. In a communication dated 10 January 2001, the Government states that six individual court cases are still pending before lower courts, 21 are the subject of appeals, three have yet to be declared receivable, the complaints in question having originally been ruled inadmissible. In 18 cases, the dismissed workers were reinstated; in two cases, the disputed dismissals were upheld after being ruled admissible; in one case, the dismissal was confirmed and compensation agreed upon by the parties; in one case, a worker was reinstated under the terms of a judicial decision; and in another case, dismissal with compensation was authorized by the court. Lastly, a court case was initiated by a worker who is currently on sick leave. Consequently, since the last meeting, eight workers have been reinstated following the resolution of their cases by lower courts.

23. The Committee notes this information and requests the Government to inform it of the final outcome of all the judicial proceedings in question.

Case No. 1943 (Canada/Ontario)

24. When it last examined this case concerning compulsory interest arbitration in certain sectors of the public service (see 320th Report, paras. 38-40) the Committee had requested to be provided with the decision of the Ontario Court of Appeal concerning the appointment of arbitrators under the Hospital Labour Disputes Arbitration Act (HDLAA).

25. In its communication of 8 January 2001, the Government provided the judgement of the Court of Appeal, which ruled that "abandoning the established practice of selecting chairpersons from the roster and the unilateral adoption by the Minister of a practice of personally selecting retired judges to replace them ... gives rise to a reasonable apprehension of bias and gives the appearance of interference with the institutional independence and the institutional impartiality of the boards of arbitration established under HLDAA" (paragraph 99 of the judgement of 21 November 2000).

26. Noting that the Government is currently reviewing the Court's ruling, the Committee recalls that chairpersons of arbitration boards should not only be strictly impartial but should also be seen to be so, if the confidence of both sides in the system is to be gained and maintained (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 549) and trusts that the Government will bring its law and practice into conformity with these principles.

Case No. 1975 (Canada/Ontario)

27. The Committee examined this case at its May-June 1999, June and November 2000 meetings (see 316th Report, paras. 229-274; 321st Report, paras. 103-118; 323rd Report, paras. 45-48, respectively). At its November 2000 meeting, the Committee strongly urged the Government to take the necessary measures to amend the legislation concerning community participation activities in order to extend the right to organize to persons involved in such activities. The Committee also reiterated its request that the Government take all the necessary measures to amend the legislation to ensure that collective bargaining in the construction industry, below the provincial level, may be initiated by either the workers' or employers' representatives at any stage of the project.

28. In a communication of 8 January 2001, the Government asserts with respect to the legislation concerning community participation activities that it does not violate the principles of freedom of association and "at this time, it is not the intention of the Ontario Government to amend Bill No. 22". Concerning collective bargaining in the construction industry, the Government states that "the Government's position remains that Bill No. 31 does not impede free and voluntary collective bargaining, and that amendments to the legislation are not required". In the context of the legislation governing collective bargaining in the construction industry, the Government notes that the Labour Relations (Amendment) Act, 2000 (Bill No. 139) was recently passed into law and clarifies that project agreements may apply to multiple or future projects developed within the term of the agreement. Bill No. 139 also indicates that project agreements cover non-construction work on a project. The Government forwarded a copy of Bill No. 139 under cover of a communication dated 11 January 2001.

29. The Committee deeply regrets the Government's staunch refusal to consider the Committee's recommendations concerning the need to amend Bills Nos. 22 and 31 in order to bring them into conformity with freedom of association principles. With respect to community participation activities, the Committee strongly urges the Government to take the necessary measures to ensure that those involved in such activities are no longer denied a fundamental right, namely the right to organize, and again requests the Government to keep it informed in this regard. With respect to Bill No. 31, the Committee notes the recent amendments arising out of Bill No. 139; however, in the view of the Committee, these amendments do not address the concerns previously raised. The Committee therefore again requests in the strongest terms the Government to take the necessary measures to amend the legislation to ensure that collective bargaining in the construction industry, below the provincial level, may be initiated by either the workers' or employers' representatives at any stage of the project, and to keep the Committee informed in this regard.

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

30. The Committee examined this case at its November 1998, November 1999 and March 2000 meetings (see respectively: 311th Report, paras. 235-271; 318th Report, paras. 26-34; and 320th Report, paras. 44-53) and, on that last occasion, made the following recommendations:

- as regards conditions of eligibility to union office, the Committee once again requested 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 (paragraph 46);

- as regards restrictions on financial contributions to trade unions and on the use of union funds, the Committee once again requested the Government to repeal sections 8 and 9 of the ELRO (paragraph 48);

- as regards the scope of protection against acts of anti-union discrimination, the Committee once again requested the Government to review the Employment (Amendment) (No. 3) Ordinance, 1997, to ensure that the right of reinstatement would not be conditional upon the prior mutual consent of both the employer and the employee concerned (paragraph 50);

- concerning the right to bargain freely with employers, the Committee once again requested the Government seriously to consider adopting appropriate provisions with respect to freedom of association principles (paragraph 52).

31. In its communication of 20 October 2000, the Government states as regards the conditions of eligibility to trade union office that, under section 17(2) of the Trade Union Ordinance (TUO), a person who has some experience in a trade, industry or occupation with which a trade union is directly concerned could become an officer of the union; flexibility is built into this section for persons from other trades to become union officers with the consent of the Registrar of Trade Unions. Since 1980, only 41 applicants from 20 registered trade unions have asked for the Registrar's consent under section 17(2) of the TUO. This reflects the overwhelming choice of local unions to entrust union affairs to persons with work experience in their respective trades. The Government underlines that the Registrar has promptly approved all applications. Therefore, in practice, the Government of the Hong Kong Special Administrative Region (HKSAR) has not hindered the election of officers of the union's choice by virtue of section 17(2) of the TUO.

32. In addition, the Government has reviewed the occupational requirement for trade union officers and consulted the Labour Advisory Board (LAB) on the outcome of its review (the LAB, comprising an equal number of employer and employee members, is the most respected and representative tripartite consultative forum on labour matters in the HKSAR; all employee members are trade unionists). The Government informed members of the LAB that it had considered all relevant factors and proposed to relax the occupational requirement stipulated in section 17(2) of the TUO. Under the proposal, a proportion of union officers of a registered union would not be required to have work experience in the concerned trade and it would not be necessary for these officers to seek the Registrar's consent in order to assume office. During the consultation, some employee members of the LAB expressed reservations on the proposal. The employee members decided to conduct a questionnaire survey themselves to collect the views of all registered trade unions in Hong Kong. The Government was not involved in the design or administration of the questionnaire survey. In August 2000, employee members informed the LAB that, out of the 595 registered employee unions surveyed, 242 unions responded and 74.4 per cent of the responding unions did not support relaxing the occupational requirement. Indeed, the occupational requirement stipulated in section 17(2) of the TUO only seeks to ensure that union officers should generally have some experience in the trade concerned so that they know the interests and needs of union members better. This principle, as demonstrated by the results of the aforementioned survey, is widely accepted by local unions. Having considered the survey results, the LAB arrived at a consensus view that section 17(2) of the TUO should not be changed. The Government respects the views of the LAB and will take them into full consideration in deciding on the way forward.

33. As regards the use of trade union funds, the Government indicates that it has not imposed a blanket prohibition on the use of trade union funds for political purposes. Trade unions could use their funds for political activities in the elections to the Legislative Council and the district councils. In the election of the Legislative Council in September 2000, a total of 417 employee unions registered as voters to elect representatives of the labour functional constituency to the Council. Amongst other functions, the Legislative Council enacts laws, debates on any issues concerning public interest, examines and approves budgets, taxation and public expenditure. Trade unionists have also been elected as members of the district councils and they have been active in advising the Government on district affairs that affect the well-being of the people in the district. The Government has recently completed a review of the provisions relating to the use of trade union funds under the TUO and consulted the LAB, which considered it undesirable to relax the use of union funds for political activities other than for local elections. These provisions now ensure that trade unions perform their true and prime functions of promoting and protecting the interests of their members and that they are not engaged essentially in political activities. On the other hand, members supported the proposal to allow trade unions to make charitable donations to lawful organizations outside Hong Kong in accordance with their registered rules.

34. Concerning the scope of protection against anti-union discrimination, the Government has also consulted the LAB to amend the requirement of mutual consent from employer and employee for reinstatement under the Employment Ordinance. After detailed deliberations, the LAB agreed that the reinstatement provisions should be amended so that the Labour Tribunal may make an order of reinstatement/re-engagement without the need to secure the consent of the employer if the Tribunal considers it appropriate and reasonably practicable. The Government will proceed with the necessary action to introduce the legislative amendments before the Executive and Legislative Councils of the HKSAR.

35. As regards collective bargaining, it has been the policy of the HKSAR Government to take measures appropriate to local conditions to encourage and promote collective bargaining on a voluntary basis. At the enterprise level, the authorities actively encourage employers to engage in effective communication with their employees' and workers' unions and to consult them on employment matters. Practical guides have been published to assist employers and employees to develop good people-management practices and handle retrenchments in consultation with employees. The Government is preparing a new publication to provide practical guidelines on workplace cooperation in the enterprise. At the industry level, the Government is actively putting in place new tripartite committees, which comprise representatives of workers' unions, employers and their organizations and the Labour Department with the objective of fostering an environment conducive to collective bargaining. Since the Government's last response to the Committee in January 2000, three new tripartite committees have been set up in the printing, hotel and tourism, as well as the cement and concrete trades. These new committees and similar ones in the catering, construction, theatre, warehouse and cargo transport and property management trades, have been holding regular meetings to discuss and agree on industry-specific issues. At present there exist altogether eight tripartite committees for the different industries.

36. Through the joint efforts of members of the committees, sample work arrangements for outdoor work in times of adverse weather have been produced, and a territory-wide promotional activity for safe driving and proper rests for drivers in the warehouse and cargo transport industry have been established. A practical guide on distinguishing employer-employee relationships from contractor-subcontractor relationships is being prepared for the warehouse and cargo transport industry. In respect of the catering trade, the committee is producing a computer software programme and CD-ROM for roster scheduling and leave management. A code of labour relations practice for the catering trade is also under preparation. As for the printing industry, the tripartite committee is preparing a guide to training opportunities for skills upgrading in the industry. The Government will continue to work towards the objective of fostering effective partnership between employers and employees.

37. The Government concludes that the HKSAR Government has a policy of making progressive improvements to employees' rights and benefits in the territory. In doing so, it always takes into full account the current social and economic circumstances, and the views of the LAB, while seeking to maintain a reasonable balance between the interests of employees and employers.

38. The Committee notes with interest that social dialogue within the Labour Advisory Board (LAB) led to progress on the issue of protection against anti-union discrimination and that legislative amendments empowering the Labour Tribunal to order reinstatements without the employer's consent will be presented to the competent councils of the HKSAR Government. The Committee trusts that these amendments will be adopted in the near future.

39. As regards the issue of free collective bargaining, while noting the explanations given by the Government concerning the efforts made at the enterprise and industry levels with a view to fostering an environment conducive to collective bargaining, the Committee must recall once again that the right to bargain freely work conditions with employers is an essential element of freedom of association, and requests the Government to give serious consideration to adopting provisions laying down objective criteria and procedures for determining the representative status of trade unions for collective bargaining purposes.

40. Concerning the restrictions on eligibility to trade union office, the Committee notes the explanations given by the Government concerning the consultations within the LAB and the results of the ensuing survey, and the flexibility built in section 17(2) of the TUO, according to the Government. The Committee nevertheless observes that this flexibility is subject to the consent of the Trade Union Registrar; it recalls once again that the determination of eligibility conditions is a matter that should be left to the discretion of union by-laws and that the authorities should refrain from any intervention which might impair the exercise of this right. The Committee points out that, in a situation where trade unions are given the choice, those workers' organizations which decide to impose such restrictions are free to do so in their by-laws, while other organizations which prefer, for their own reasons or out of necessity, to call on larger pool of potential candidates would also be free to do so. The Committee therefore requests once again the Government to repeal section 5 of the Employment and Labour Relations (Miscellaneous Amendments) Ordinance, 1997 (ELRO).

41. As regards the use of union funds, while noting that a debate took place in the LAB on this issue, that a number of unions participated in the election to the labour constituency of the Legislative Council, that some trade unionists have been elected as members to the district councils, and that LAB members supported the proposal to allow trade unions to make charitable donations to lawful organizations outside Hong Kong, the Committee must recall that provisions which restrict the freedom of trade unions to administer and utilize their funds as they wish for normal and lawful trade union purposes are incompatible with principles of freedom of association. The Committee once again requests the Government to amend sections 8 and 9 of the ELRO.

42. The Committee requests the Government to keep it informed of the measures taken to give effect to its recommendations and reminds it that it may avail itself of the technical assistance of the ILO on all these issues.

Case No. 2031 (China)

43. The Committee last examined this case at its June 2000 session (see 321st Report, paras. 140 to 176). On this occasion, it had requested the Government to: (a) take the necessary measures to ensure that sections 4, 5, 8, 9, 11 and 13 of the 1992 Trade Union Act are amended in line with freedom of association principles; (b) take the necessary measures to ensure the immediate release of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan, who were all sentenced to imprisonment ranging from one to 12 years in 1998 and 1999. In the case of Mr. Zhang Shanguang, the Committee had urged the Government to institute without delay an independent inquiry into the allegations of torture and ill-treatment inflicted on Zhang while in detention.

44. In a communication dated 9 January 2001, the Government repeats once again that the 1992 Trade Union Act does not violate principles of freedom of association. More specifically, the Government indicates that section 4 of the said Act, which provides that "the National Congress of Trade Unions formulates or amends the Constitution of Trade Unions of the People's Republic of China which shall not contravene the Constitution and other laws" is consistent with Article 8 of Convention No. 87 since it is common practice in countries governed by the rule of law to state that no organization is allowed to place itself above the Constitution and law of the country. With regard to sections 5, 8 and 9 of the Act, the Government indicates that while the substance of these sections does not contravene freedom of association principles, they are being revised and necessary adjustments will be introduced so that the abovementioned sections can be more consistent with the expressions used in international conventions. As for sections 11 and 13 of the Act which provide that "the establishment of basic-level trade union organizations, local trade union federations, and national or local industrial trade union organizations shall be submitted to a higher-level trade union organization for approval", the Government reiterates that the establishment of the unified All-China Federation of Trade Unions was decided by the historic reality of China and the will of the Chinese workers and is in line with the basic interests of the broad masses of workers.

45. Concerning the situation of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan, the Government indicates that it has conducted further verifications which lead to the following conclusions. All these persons have been sentenced to imprisonment because of their breach of provisions of the Criminal Code of China and some of them are repeat offenders. The Government explains once again that their activities have nothing to do with freedom of association and they were all sentenced for criminal offences. In addition, the Government indicates that following its investigation, it appears that Mr. Zhang has not been maltreated during his custody.

46. The Committee takes note of the information provided by the Government. With regard to the conformity with freedom of association principles of section 4 of the 1992 Trade Union Act, the Committee recalls once again that in exercising their right to freedom of association, workers and their organizations shall respect the law of the land provided that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the principles of freedom of association. The Committee further notes that sections 5, 8 and 9 of the Act are being reviewed in order that they can be more consistent with the expressions used in international conventions. However, the Committee must recall that several provisions of the Trade Union Act are contrary to the fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes. The Committee therefore once again in the strongest terms requests the Government to take the necessary measures to ensure that sections 4, 5, 8, 9, 11 and 13 of the Act are amended in line with freedom of association principles.

47. With regard to the situation of the six individuals who have been sentenced to imprisonment mainly on charges of instigating disturbances and serious disruption of social order, the Committee regrets that the Government merely reiterates the information it had provided previously. The Committee recalls its previous conclusion that these persons were sentenced to imprisonment for exercising legitimate trade union activities. In this regard, the Committee considers that while persons engaged in trade union activities cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest and detention of trade unionists (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 64 and 83). Therefore, the Committee once again strongly urges the Government to take the necessary measures to ensure the immediate release of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan. The Committee requests the Government to keep it informed of developments in this regard.

Case No. 1964 (Colombia)

48. At its June 2000 meeting, the Committee made the following conclusions and recommendations (see 322nd Report, paras. 78-81):

The Committee observes that the complainant organization in this case had alleged a number of acts of anti-union interference and discrimination by the management of CONALVIDRIOS S.A., as well as non-compliance by it of the terms of the collective agreement. In its previous examination of the case, the Committee requested the Government to order a thorough investigation into each of the allegations and to keep it informed of the findings.

The Committee notes the Government's statements that the Ministry of Labour and Social Security has carried out an administrative inquiry into the allegations presented by SINTRAVIDRICOL, and that it was decided, through Ministerial Resolution No. 0661 of 3 May 2000, not to take any administrative measure against CONALVIDRIOS since the regular labour jurisdictions are the ones which have jurisdiction to decide whether workers were dismissed for just cause, and because the complainants have not submitted evidence to support the allegations as regards the refusals of trade union leave, the recognition of trade union organizations, the non-functioning of some committees provided for in the collective agreement, the obstacles to proper industrial relations and the violations of the right to associate. The complainants are still within the prescribed time limits to file revision or appeal proceedings should they so wish.

The Committee emphasizes that the initial complaint was presented by the complainant in communications of April and May 1998 and deeply regrets that until very recently, for a period of two years during which it did not send sufficiently detailed information, the Government should have merely stated that it was up to the courts to make a decision on the dismissals of 20 trade unionists and that the complainants had not submitted evidence to substantiate their allegations. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of trade union leaders dismissed by an enterprise, constitute a denial of justice and therefore a denial of trade union rights of the persons concerned (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 748-749). This being so, the Committee stresses that the dismissed trade union leaders may launch the corresponding judicial proceedings and requests the Government to keep it informed of the results of any proceedings filed against Ministerial Resolution No. 0661 of 3 May 2000.

Finally, the Committee observes that, according to the Government, the SINTRAVIDRICOL trade union has in this case the option of bringing its case before the ordinary courts or before the penal courts on the grounds that its freedom of association has been violated or of seeking the courts' protection if its fundamental rights have been violated by CONALVIDRIOS S.A. In these circumstances, observing that the complainant refers to more than 100 judicial proceedings with respect to trade union rights violations on which the courts have already ruled, the Committee requests the Government to inform it of any court decision that may be or has been handed down in connection with the allegations presented by the complainant.

49. In its communications of 24 October 2000 and 4 January 2001, the Government states that the Ministry of Labour and Social Security decided in Ministerial Resolution No. 0661 of 3 May 2000 not to take any administrative measures against CONALVIDRIOS. This Ministerial Resolution was not appealed by the parties and, under article 62 of Decree No. 01 of 1984 (Administrative Code), it has remained executory and has passed through all stages of the legislative process. Nevertheless, SINTRAVIDRICOL, in a document dated 24 August 2000, began proceedings to revoke the aforementioned administrative decision. However, an administrative decision of 19 October 2000 rejected this application for reconsideration. The Committee notes this information.

50. The Government also states that the trade union organization SINTRAVIDRICOL-SECSOACHA has informed the Ministry of Labour and Social Security of special trade union proceedings in the ordinary courts involving 15 trade union officials; conciliation has been reached in five cases. The Committee requests the Government to keep it informed of the outcome of the proceedings currently under way and expresses the hope that these will be concluded in the near future.

Case No. 1966 (Costa Rica)

51. At its November 1999 meeting, the Committee noted the proposed amendments of the Labour Code submitted to the Legislative Assembly following tripartite consultations and expressed the hope that the amendments would be adopted in the very near future and requested the Government to keep it informed in this regard (see 318th Report, para. 46). These proposed amendments should strengthen protection against anti-union persecution, and make existing procedures more flexible.

52. In its communication of 14 August 2000, the Government states that the proposed amendments are currently before the legislative plenary. The Committee requests the Government to provide it with the text of the law as soon as it is adopted.

Case No. 2024 (Costa Rica)

53. In its March 2000 meeting, the Committee made the following recommendations on the outstanding allegations (see 320th Report, para. 567):

- deeply regretting the acts of anti-union discrimination and interference carried out by the Southern Banana Cooperation (COBASUR), the Committee requests the Government to keep it informed of the results of the decision handed down by the legal authority concerning the complaint submitted by the administrative authority relating to the dismissal of the trade union leader, Mr. Adrián Herrera Arias and to the acts of anti-union discrimination and interference carried out by the enterprise;

- the Committee requests the Government to keep it informed about action taken by the Attorney-General's Office concerning the complaint relating to the beatings, threats and aggression inflicted on the trade union leader, Mr. Adrián Herrera Arias, to ensure a judicial inquiry is promptly carried out and to send it the results.

54. In its communication dated 14 August 2000, the Government sent a communication from the Labour Inspectorate that states that the judicial proceedings against COBASUR (dismissal of the trade union official, Mr. Adrián Herrera Arias, alleged aggression inflicted against this trade union leader) are paralysed because it has not been possible to notify the company. The Government states that documents have been drawn up to correct the process and make it more flexible. The Committee notes this situation with concern, in particular the inability to notify the company, and expresses the hope that the proceedings will be concluded as soon as possible. It requests the Government to keep it informed of the outcome.

Case No. 2030 (Costa Rica)

55. At its March 2000 meeting, the Committee requested the Government to inform it of the outcome of the administrative proceedings on the matter dealt with in this complaint (proceedings against decision 18-97 of 17 April 1997 taken by the administrative board of the National Registry) (see 320th Report, para. 597). In its communication of 14 August 2000, the Government stated that the proceedings were currently before the Administrative High Court awaiting a decision. The Committee requests the Government to send it this decision as soon as it is handed down.

Case No. 1890 (India)

56. At its November 2000 meeting, the Committee last examined this case concerning the dismissal of Mr. Laximan Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), the suspension or transfer of 15 FABREU members following strike action, and refusal to recognize the most representative workers' organization for collective bargaining purposes (see 323rd Report, paras. 65-67).

57. In a communication dated 9 January 2001, the Government repeats its previous information according to which out of the three inquiries which were in progress in respect of Shri Ashok Deulkar, Sitaram Ruthod and Shyam Kerkar, the case of Mr. Deulkar was settled amicably and thus two inquiries are still in progress. With regard to the second group of seven workers suspended pending inquiry, the Government indicates that only two inquiries are still in progress and that a further report will follow. As regards the case of Mr. Malwankar, the Government indicates that the adjudication proceedings are in progress and the case pending for arguments on preliminary issues. The hearings are adjourned at the instance of Mr. Malwankar and the next date for hearing is fixed for 20 February 2001. As for the Charter of Demands served by Fort Aguada Beach Resort Employees' Union, the Government indicates that the Industrial Tribunal of Goa has already given award to it and ruled that the workers of the said union were entitled to the benefits of the settlements agreed upon in 1995 and 1998.

58. The Committee takes note of the information provided by the Government. It recalls that this case related to various acts of harassment and anti-union discrimination carried out against the President of FABREU, Mr. Malwankar, from 1992 to 1994, which culminated in the dismissal of this trade union leader in January 1995 and the suspension or transferral of FABREU members in April 1995 following a strike action in the hotel industry which was declared a public utility service and thus referred to the Industrial Tribunal contrary to the principles of freedom of association since the hotel industry is in no way an essential service in which strikes can be prohibited (see 307th Report, paras. 366-375). The Committee once again must deeply deplore the fact that the events to which the various proceedings and inquiries are related occurred in 1995 and earlier. With respect to Mr. Malwankar, the Committee expresses the firm hope that the court proceedings will be expedited and requests the Government to continue to keep it informed of the outcome of the proceedings, including forwarding copies of the preliminary and final decisions. Furthermore, the Committee requests the Government to continue to keep it informed of all the other pending issues related to this case.

Case No. 1877 (Morocco)

59. At its November 2000 session, the Committee had requested the Government to keep it informed of the developments in the legal proceedings filed by workers of the Somadir company in Casablanca and El Jadida (see 313th Report, para. 38). In a communication of 17 January 2001, the Government provided the following information regarding the labour dispute at the Somadir company: the cases of two workers are still pending before the court of the first instance of Casablanca; the Court of Appeal has handed down a decision in favour of five of the 11 workers who had appealed the decision of the court of the first instance, ruling that they were entitled to compensation, but has not yet examined the remaining six cases; the Somadir company has appealed the decision of the Court of Appeal ruling in favour of the workers, and the Supreme Council has not yet handed down a decision on the matter. The Committee takes due note of this information and requests the Government to continue to keep it informed of developments in the judicial proceedings concerning this case.

Case No. 2048 (Morocco)

60. The Committee last examined this case at its November 2000 session (see 323rd Report, paras. 384-396) and on that occasion requested the Government to transmit the decision of the Rabat Court of Appeal concerning the Avitema farm workers, who had been conditionally released, and the ruling of the Court of the First Instance of Rabat concerning Mr. Abderrazak Chellaoui, Mr. Bouazza Maâche and Mr. Abdelslam Talha. The Committee had also urged the Government to ensure that all necessary measures were taken without delay so that the workers dismissed from Avitema farm would be reinstated in their posts.

61. In its communication of 8 January 2001 the Government states that neither the decision of the Rabat Court of Appeal, nor the ruling of the Court of the First Instance of Rabat have been handed down, the hearings having been postponed to 18 June and 18 January 2001, respectively. As regards the reinstatement of the Avitema farm workers, the Government points out that, following steps taken by services of the Ministry of Employment, 12 employees have been reinstated in their posts and ten others have received their legal compensation.

62. The Committee notes this information. It further notes with interest the reinstatement of some of the Avitema farm workers who had been dismissed on account of their having exercised their legitimate right to strike. The Committee also notes however that, so far, neither the Rabat Court of Appeal nor the Court of the First Instance of Rabat have handed down their decisions concerning the events which took place in September 1999. The Committee expresses the firm hope that these decisions will be taken without delay and once again requests the Government to transmit them as soon as they have been handed down.

Case No. 2009 (Mauritius)

63. At its November 1999 meeting, the Committee had called upon the parties to come promptly to an agreement on all the modalities concerning the granting and use of time-off facilities, and requested to be kept informed of developments (see 318th Report, paras. 272-297).

64. In its communication of 9 January 2001, the Government indicates that no deductions have been made from the salary of trade union officials in respect of the time-off taken in excess of their entitlement and that meetings are being held to sort out the issue of time-off facilities.

65. The Committee takes note of this information and requests the Government to keep it informed of the result of these discussions.

Case No. 1698 (New Zealand)

66. The Committee last examined this case at its November 1999 meeting (318th Report, paras. 66-68) 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).

67. In a communication dated 28 September 2000, the Government indicates that the Employment Relations Act (ERA), which repeals the ECA, will come into force on 2 October 2000. In particular, the Government indicates that the ERA effectively promotes collective bargaining and permits strikes over whether a collective agreement will bind more than one employer, in accordance with established ILO principles.

68. In a communication dated 16 November 2000, the New Zealand Council of Trade Unions (NZCTU), which was the complainant organization in that case, indicated its desire to withdraw its complaint against the Government of New Zealand since the 1991 Employment Contracts Act has now been repealed.

69. The Committee takes note of this information and, in particular, the changes in the arrangements for multi-employer agreements brought about by the Employment Relations Act, with satisfaction.

Case No. 2006 (Pakistan)

70. The Committee last examined this case at its November 2000 meeting (see 323rd Report, paras. 408-430) on which occasion it made the following recommendations:

(a) The Committee notes that the ban on trade union activities in the Pakistan Water and Power Development Authority (WAPDA) has now been lifted.

(b) The Committee once again requests the Government to ensure that the practice of deducting trade union dues is resumed without delay in WAPDA. It asks the Government to keep it informed of developments in this regard.

(c) Reiterating the principle that recourse to measures of suspension or dissolution of trade union organizations through administrative channels constitutes a clear violation of Article 4 of Convention No. 87, the Committee once again requests the Government to keep it informed of the outcome of the appeal filed by the Pakistan WAPDA Hydro Electric Central Labour Union to the Lahore High Court against the decision of the Deputy Registrar to cancel its registration.

(d) The Committee requests the Government to confirm that the ban on trade union activities in KESC which was to continue until 31 October has now been lifted and that the workers' trade union rights have now been restored. It further urges the Government to restore the collective bargaining rights of KESC workers without delay and requests the Government to keep it informed of developments in this regard.

(e) The Committee requests the Government to take the appropriate measures to ensure that the rights of the Pakistan WAPDA Hydro Electric Central Labour Union and the KESC Democratic Mazdoor Union, respectively, as collective bargaining agents (CBAs) are restored to them without delay. It asks the Government to keep it informed of developments in this regard.

(f) The Committee requests the Government to keep it informed of any developments in respect of the WAPDA and KESC union officials who were forcibly retired.

71. In a communication dated 3 January 2001, the All Pakistan Federation of Trade Unions (APFTU) indicates that: (i) the trade union rights of WAPDA workers have been restored by Presidential Ordinance No. XXVII of 2000; (ii) the registration and the legal status as "collective bargaining agent" of the WAPDA union has been restored by a judgement of 3 August 2000 pronounced by the National Industrial Relations Commission of Pakistan; (iii) the facility of check-off to the said union has been restored by WAPDA management on 30 August 2000. The Committee takes note of this information with interest.

72. With regard to the other pending issues related to this case, the Committee requests once again the Government to confirm that the ban on trade union activities in the Karachi Electricity Supply Company (KESC) has now been lifted and that the workers' trade union rights have now been restored. It further urges the Government to take the appropriate measures to ensure that the rights of the KESC Democratic Mazdoor Union as collective bargaining agents are restored without delay. Finally, the Committee requests the Government to keep it informed of any developments in respect of the WAPDA and KESC union officials who were forcibly retired.

Case No. 1785 (Poland)

73. When it last examined this case at its June 2000 meeting, the Committee had noted with interest the detailed information provided by the Government regarding the issue of cash compensations to trade union organizations and assignment of real estate property to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ), and requested the Government to keep it informed of developments (see 321st Report, paras. 66-70).

74. In its communication of 31 January 2001, the Government indicates that as of 30 September 2000, 762 claims were under review by the Social Commission for Vindication (which reviews its earlier decisions and fixes the amounts of state treasury liabilities). According to the Commission, all these proceedings may be finalized by October or November 2001, that is earlier than previously planned. The Minister of Finance, taking into account the fact that the total value of state treasury liabilities claimed by authorized entities for compensation in the form of bonds at different stages was too small, had renounced to issue bonds, as provided for by the Act of 3 December 1998. In this situation, article 3(8) of the Act provides that the liabilities be paid in cash. To satisfy them, the Government had earmarked sufficient funds in the 1999 and 2000 budgets.

75. However, as other more pressing socially important needs arose in both years those funds were diverted to finance those needs rather than pay the liabilities in question. As a result, liabilities arising from the rulings made by the Commission before 30 November 1998, from 1 December 1998 to 31 May 1999 and after 31 May 1999 have not been paid yet. However, statutory interest accrues on all of them. That being so, the Minister of Finance decided to pay the outstanding and newly arising liabilities of this kind with bonds, provided that all payees agreed. On 18 September 2000, the Minister submitted for inter-ministerial consultation a draft regulation concerning the detailed conditions respecting the issue of bonds for payment of state treasury liabilities in connection with the restitution of trade union and voluntary associations' property seized under the martial law. The bonds will have a total nominal value of PLN 300 million with maturity on 21 August 2002, with option for earlier purchase by the Ministry of Finance by tender. The bonds will be freely tradable on the secondary market.

76. Work in the Government continues on a legislation concerning the legal status of property of the former trade union association (CRZZ) and of the trade union organizations outlawed under the martial law (the so-called "branch" and "autonomous" trade unions). As the National Commission of the Independent Self-governing Trade Union "Solidarnosc" refrained from offering their suggestions on future legislation in this regard, which the Government would have welcomed, the Government will submit the draft to the National Commission for formal consultations.

77. The Committee notes that the Commission in charge of settling the various financial issues in question here plans to conclude its work by October 2001. While aware of the complexity of factual and legal issues, the Committee recalls that this representation dates back to 1995 and expresses once again the firm hope that all remaining issues will be finally settled by October 2001. It requests the Government to keep it informed in this regard.

Case No 1972 (Poland)

78. When it last examined this case at its June 2000 session (see 321st Report, paras. 71-79) the Committee requested the Government to provide the final court decision concerning the dismissal of Mr. Grabowski, chairperson of the trade union Sprawiedliwosc; as regards the allegations presented by the All Poland Trade Union Alliance, (OPZZ), the Committee recalled the necessity to consult with social partners on draft legislation and requested the Government to provide the text of the Act extending the mandate of the National Tripartite Commission, which is intended to be a forum for consultation and negotiation of social issues.

79. In its communication of 3l January 2001, the Government indicates that the Warsaw Court of First Instance, which will re-examine the case of Mr. Grabowski, has requested the Prime Minister Chancellery to produce additional documents, but has not set a trial date yet. Concerning the OPZZ allegations, the Government explains that the principle of consulting social partners on draft legislation is respected by the Government; violations of this principle rarely occur and, when they do, are unintended. In the present case, the Prime Minister's Chancellery intervened as soon as the issue was brought to its attention and reminded the Ministry concerned of the obligation to consult social partners. The Government further indicates that the draft Act on the Social and Economic Commission is currently being discussed in a commission of the Sejm.

80. The Committee takes due note of this information. The Committee hopes that the judicial proceedings concerning the dismissal of Mr. Grabowski will be concluded soon and requests the Government to provide the final court decision. The Committee also requests the Government to provide the text of the Act on the Social and Economic Commission as soon as it is adopted.

Case No. 2089 (Romania)

81. The Committee last examined this case at its November 2000 meeting (see 323rd Report, paras. 478-492) and made the following recommendation:

Noting that the Government has held talks with the trade union organizations on procedures for implementing an emergency Order suspending collective agreements freely entered into in the public sector and has reached a consensus on amendments to the original text of that Order, the Committee invites the Government and the complainant to keep it informed of developments in this regard.

82. In a communication dated 10 January 2001, the Government states that the amended emergency Order remained in force only until 31 December 2000 and is therefore no longer applicable. The Committee notes this information with satisfaction.

Case No. 1994 (Senegal)

83. During its last examination of this case at its November 2000 meeting concerning a labour dispute within the National Electricity Company of Senegal (SENELEC), which resulted in the arrest of strikers following a general power cut that took place in July 1998 and the dismissal of many members of the Single Trade Union of Electricity Workers (SUTELEC), the Committee had requested the Government to take measures to ensure that the SUTELEC union members and officials who were dismissed following incidents that took place in July 1998 were offered reinstatement in their posts without loss of pay.

84. Following a communication of 21 December 2000, the Committee notes with satisfaction the signing of an agreement between representatives of SENELEC and trade union officials from SUTELEC on 15 December 2000. The agreement, a copy of which was annexed to the communication, details reinstatement procedures for those who wish to take up their posts again, compensation for those who do not wish to be reinstated, including compensation for the heirs of the two workers who have died in the meantime, and priority hiring procedures for those workers who were on fixed-term contracts when this situation took place and whose contracts have not been renewed.

Case No. 2038 (Ukraine)

85. The Committee last examined this case at its June 2000 meeting when it requested the Government to keep it informed of all relevant developments concerning the amendment of sections 11 and 16 of the Act on Trade Unions (hereinafter, the Trade Unions Act), their rights and safeguards of their activities in line with the principles of freedom of association and drew the Government's attention to the availability of ILO technical assistance in this regard (see 321st Report, paras. 91-93).

86. In a communication dated 7 November 2000, the Government transmitted a copy of the judgement of the Constitutional Court of Ukraine which has declared unconstitutional the clauses of sections 11 and 16 of the Trade Unions Act which restrict the right to freedom of association and orders that these provisions will immediately cease to have effect. The Government states that this ruling will make it possible to eliminate the divergences between the Act and Convention No. 87 and responds positively to the offer of ILO technical and advisory assistance in respect of the implementation of the court judgement.

87. The Committee takes notes of this information with satisfaction, as well as of the prospects of a technical assistance mission to the country. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the follow-up given to this case.

88. Finally, as regards Cases Nos. 1512/1539 (Guatemala), 1618 (United Kingdom), 1796 (Peru), 1826 (Philippines), 1843 (Sudan), 1884 (Swaziland), 1895 (Venezuela), 1914 (Philippines), 1925 (Colombia), 1937 (Zimbabwe), 1939 (Argentina), 1952 (Venezuela), 1957 (Bulgaria), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1967 (Panama), 1996 (Uganda), 2005 (Central African Republic), 2007 (Bolivia), 2008 (Guatemala), 2018 (Ukraine), 2019 (Swaziland), 2027 (Zimbabwe), 2047 (Bulgaria), 2056 (Central African Republic), 2058 (Venezuela), 2075 (Ukraine), 2081 (Zimbabwe) and 2085 (El Salvador), 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 Cases Nos. 1581 (Thailand), 1785 (Poland), 1813 (Peru), 1862 (Bangladesh), 1878 (Peru), 1944 (Peru), 1963 (Australia), 1970 (Guatemala), 1978 (Gabon), 1987 (El Salvador), 1989 (Bulgaria), 2028 (Gabon), 2034 (Nicaragua) and 2059 (Peru), which it will examine at its next meeting.