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 31 May and 1 and 14 June 2001, under the chairmanship of Professor Max Rood.

2. The members of Chilean and Venezuelan nationalities were not present during the examination of the cases relating to Chile (Case No. 2107) and Venezuela (Cases Nos. 2067 and 2088).

3. Currently, there are 56 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 22 cases on the merits, reaching definitive conclusions in 11 cases and interim conclusions in 11 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. 2119 (Canada/Ontario), 2120 (Nepal), 2121 (Spain), 2122 (Guatemala), 2123 (Spain), 2124 (Lebanon), 2125 (Thailand) and 2126 (Turkey), 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), 2017 (Guatemala), 2036 (Paraguay), 2050 (Guatemala), 2111 (Peru), 2114 (Japan), 2115 (Mexico), 2117 (Argentina) and 2118 (Hungary).

Partial information received from governments

6. In Cases Nos. 1787 (Colombia), 1948 (Colombia), 1955 (Colombia), 1962 (Colombia), 1986 (Venezuela), 1995 (Cameroon), 2046 (Colombia), 2086 (Paraguay), 2094 (Slovakia) and 2104 (Costa Rica), the governments have sent partial information on the allegations made. The Committee requests all of these governments to send the remaining information without delay so that it can examine these cases in full knowledge of the facts.

Observations received from governments

7. As regards Cases Nos. 2013 (Mexico), 2096 (Pakistan), 2113 (Mauritania) and 2122 (Guatemala), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

8. As regards Cases Nos. 2095 (Argentina), 2103 (Guatemala), 2105 (Paraguay) and 2116 (Indonesia), the Committee observes that, despite the time which has elapsed since the submission of the complaints or the last examination of the cases, it has not received the observations of the governments concerned. 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 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.

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

9. The Committee considered that it should especially draw the Governing Body's attention to certain cases due to the seriousness and the urgency of the issues raised therein. These cases concern the following countries: Ethiopia (Case No. 1888), Haiti (Case No. 2052) and Venezuela (Cases Nos. 2067 and 2088).

10. Furthermore, due to the Haitian Government's total lack of cooperation in forwarding observations regarding the recent complaints submitted against it, the Committee requested its Chairperson, pursuant to paragraph 61 of the Committee's procedure, to make contact with the representatives of the Haitian Government attending the International Labour Conference in order to discuss the matters at issue.

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: Peru (Case No. 1878), Canada/Ontario (Case No. 1951), Venezuela (Case No. 2067) and Peru (Case No. 2098).

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

Case No. 1963 (Australia)

12. The Committee last examined this case concerning violations of freedom of association arising out of actions in relation to workers in stevedoring operations at various Australian ports, at its November 2000 meeting (see 323rd Report, paras. 22-24). At that time, the Committee requested the Government to provide information concerning any inquiry held to determine whether serving defence force personnel were involved in training in Dubai in order to replace dismissed workers. It also requested the Government to forward decisions concerning the relevant outstanding court matters once they have been rendered.

13. In communications of 19 and 26 February 2001, respectively, the Government provides a summary of the status of the court matters and information on the Defence Force Discipline Act. In a communication of 16 May 2001, the Government forwards a letter from the Chief of the Army concerning the alleged training of Australian defence force personnel in Dubai in May 1998, stating that having searched all relevant records, no investigation has been conducted because "we believe that nothing untoward had occurred that required or justified an investigation".

14. The Committee takes note of the information provided by the Government, and requests it to continue providing information as to the status of the outstanding court matters, and to forward the decisions once they have been rendered.

Case No. 1862 (Bangladesh)

15. At its November 2000 meeting, when it last examined this case (see 323rd Report, paras. 28-31), the Committee had urged the Government, once again, to speed up the discussions regarding the amendment of sections 7(2) and 10(1)(g) of the 1969 Industrial Relations Ordinance so that concrete results may be obtained in the very near future. The Committee also requested the Government to provide it with the decisions of the Labour Court concerning the registration of the trade union at Saladin Garments Ltd., and of the High Court Division concerning the registration of the Karmashari trade union at Palmal Knitwear Ltd., as soon as they are issued.

16. In its communication of 15 February 2001, the Government states in connection with the first issue that it is still consulting social partners in order to reach consensus on the amendments to the Industrial Ordinance of 1969, and expects a fruitful result soon; in addition, a high-level tripartite committee is currently reviewing the draft Labour Code 1994 and it is expected that this review will be finalized soon. Concerning the registration of the trade union at Saladin Garments Ltd., the case is still pending before the First Labour Court in Dhaka; the Committee will be informed as soon as the decision is issued. As regards the situation at Palmal Knitwear Ltd., the case is still pending before the High Court Division; while the Ministry of Labour cannot interfere in this matter with the Judicial Department, which is an independent body, the Government has directed the Solicitor Branch to move the case to the High Court for speedy disposal.

17. Noting that discussions with social partners are continuing concerning amendments to the Industrial Ordinance of 1969 and that a tripartite committee is reviewing the framework of industrial relations, the Committee firmly hopes that these tripartite discussions will yield positive results in the very near future, particularly taking into account the lengthy consultations that have already taken place, the reiterated calls by the Committee of Experts and the commitment made in that respect by a Government representative at the 1998 Conference; the Committee requests the Government to keep it informed of developments in this respect. The Committee strongly hopes that the court decisions concerning the registration of the trade unions at Saladin Garments Ltd. and Palmal Knitwear Ltd. will be issued shortly and requests the Government, once again, to provide it with these judgements as soon as they are issued

Case No. 1989 (Bulgaria)

18. When it last examined this case at its November 2000 meeting, the Committee requested the Government to keep it informed of developments with respect to any pending court cases concerning workers dismissed from the Bulgarian State Railways (BSR) following warning strikes in support of wage increases. It also requested the Government to keep it informed of the outcome of the independent commission established to examine allegations of anti-union discrimination against members of the Trade Union of Engine Personnel of Bulgaria (TUEPB) who refused to withdraw from the union (see 323rd Report, paras. 39-41).

19. In a communication of 26 February 2001, the Government states that the BSR has taken the required action to implement the courts' decisions that have come into force. As a result, drivers have been reinstated in jobs doing the same kind of work they were performing prior to their dismissal. Arising from the courts' decisions, a Protocol presented by TUEPB was signed between BSR and the Union of the Transport Trade Unions in Bulgaria (UTTUB), the implementation of which was confirmed by an Order issued by the Director-General of BSR. The Protocol provides that BSR will finance a 14-day training course at the Centre for Professional Qualification in Sofia, for the drivers who have been reinstated. It also provides that an examination will be organized within 15 days of the completion of the training on the Regulations for the Trains Movements, the Regulations for Technical Operation, and on the Signalization Instructions. To ensure objectivity and impartiality, a UTTUB representative is to be present during the examination. The Government states further that the independent commission which was to inquire into the allegations of harassment of the members of TUEPB, is in the process of being set up.

20. The Committee takes due note of the information provided by the Government, in particular the signing of a Protocol, initiated by TUEPB, providing for the retraining of the reinstated workers. The Committee, however, reiterates its request for information on the outcome of the court cases that were pending, and would like to know how many of the workers have in fact been reinstated. Once again, the Committee trusts that all the dismissed workers will be reinstated in their jobs with full compensation. The Committee also expresses the hope that the independent commission inquiring into the allegations of harassment of the TUEPB members will be able to move forward with its mandate without further delay, and asks to be kept informed in this regard.

Case No. 2083 (Canada/New Brunswick)

21. When it examined this case at its March 2001 session, the Committee requested the Government to take measures to ensure that casual workers in the public service be granted the right to establish and join organizations of their own choosing and to bargain collectively, and to keep it informed of developments (see 324th Report, paras. 235-256)). In a communication of 8 May 2001, the Government indicates that the competent authorities were to meet representatives of the complainant organization on 17 May 2001. The Committee notes this information and requests the Government to keep it informed of the results of that meeting.

Case No. 1987 (El Salvador)

22. The Committee last examined this case, relating to the refusal to recognize and to grant legal personality to various trade unions, at its November 2000 meeting (see 323rd Report, paras. 61-62). On that occasion the Committee requested the Government to keep it informed with regard to the process of reform of the Labour Code and expressed the hope that full account would be taken of its recommendations in that process.

23. In a communication of 7 February 2001, the Government informs the Committee that on 20 October 2000 the Ministry of Labour and Social Welfare of El Salvador, in accordance with a decision handed down by the administrative litigation division of the Honourable Supreme Court of Justice, decided to grant legal personality to the Trade Union of the El Salvador Telecommunications Company (SUTTEL), whose credentials were issued on 14 November 2000 as the trade union elected its General Executive Committee on 29 October 2000, which will exercise its functions until 23 May 2001.

24. The Government stresses that if the Ministry of Labour has not encouraged negotiations between the employer and the trade union it is because the Labour Code establishes that in order for an employer to be obliged to recognize a trade union as representative of workers' interests for the purposes of negotiation and collective bargaining, that trade union must represent the majority of the enterprise's workers, which is not the case. The Government adds that in the company in question, there is already a trade union organization with legal personality granted by the Secretary of State, called the Trade Union of the El Salvador Telecommunications Enterprise (SUTTEL). The complainant organization later informed the ILO that the company formally committed itself, under an agreement, to bargain with the SUTTEL.

25. The Committee notes this information, and once again requests the Government to keep it informed with regard to the reform of the Labour Code in the light of the recommendations it has made in previous examinations of the case.

Case No. 2010 (Ecuador)

26. The Committee last examined this case, concerning the murder of a trade union official, threats against another official and deaths during demonstrations, at its meeting in March 2001 (see 324th Report, paras. 554 and 563). On that occasion, the Committee expressed the firm hope that the judicial inquiry under way into these murders would be concluded very soon and requested the Government to keep it informed of the final outcome of these investigations.

27. In its communication of 6 March 2001, the Government supplies the final documents concerning to the factual investigation of the case and states that all proceedings have been completed. Indeed, according to the criminal court which examined the case, during this action, which was officially conducted as a judicial inquiry, no specific complaint or accusation was proven, no proceedings remained pending and no one was charged.

28. The Committee notes this information and regrets that the murder has remained unpunished. Therefore, the Committee is bound to recall 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).

Case No. 1978 (Gabon)

29. The Committee last examined this case, which concerns the existence and free functioning of trade union structures of the Gabonese Confederation of Free Trade Unions (CGSL) in the Leroy-Gabon and SOCOFI enterprises and the dismissal of trade unionists for exercising their right to strike, at its May 2000 meeting (see 321st Report, paras. 28-36). At the time, it requested the Government to take the necessary measures to ensure the existence and free functioning of the CGSL trade union in the SOCOFI enterprise, once the union had complied with registration formalities provided by law. The Committee had further asked the Government to keep it informed of the decision of the Court of Appeals on the legality of the strike launched by the CGSL at the SOCOFI enterprise in 1997.

30. In a communication dated 31 January 2001, the Government indicates that the decision regarding the legality of the strike at the SOCOFI enterprise is still on appeal before the Libreville Labour Court, but that SOCOFI has nevertheless been invited to authorize trade union pluralism within the enterprise.

31. Moreover, the Government states its intention first to hold elections of workers' representatives throughout the country and subsequently to enter into negotiations with the social partners, with a view to remedying legal shortcomings in the collective agreements as regards trade union representation in enterprises.

32. The Committee takes note of this information. As regards the decision concerning the legality of the strike at the SOCOFI enterprise, it notes that the matter is still pending before the Libreville Labour Court. The Committee recalls that the strike took place in September 1997, i.e. more than three and a half years ago, and that the dismissed workers are still awaiting the Court's decision. The Committee once again urges the Government to take the necessary measures - if the strike is ruled to have been lawful - in order that the workers dismissed for exercising the right to strike are reinstated in their posts without loss of pay. It also reiterates its request that the Government notify it of the decision of the Labour Court as soon as the decision is handed down.

33. As regards the allegations concerning the dissolution of the CGSL trade union structure at the SOCOFI enterprise, the Committee notes the Government's statement that SOCOFI has been invited to authorize trade union pluralism within the enterprise. The Committee, therefore, requests the Government to confirm the existence and free functioning of the CGSL trade union in the enterprise. Moreover, while taking due note of the Government's statement of intention to enter into negotiations with the social partners on the question of trade union representation in enterprises and to hold elections of workers' representatives throughout the country, the Committee reminds the Government that it is for workers' organizations to determine the conditions under which their leaders are elected, and that the authorities should refrain from any unjustified interference in the exercise of the guaranteed right of workers' organizations to elect their representatives in full freedom, pursuant to Convention No. 87.

Case No. 2028 (Gabon)

34. At its meeting in November 2000 (see 323rd Report, paras. 201-213) the Committee examined this case, which concerned the arrest and detention of a trade union member, Mr. Nguelani. On that occasion, recalling that the arrest of trade unionists against whom no charge is brought involves serious restrictions on freedom of association, the Committee urged the Government to take the necessary steps to ensure that Mr. Nguelani was duly compensated by the authorities for his loss of salary during preventive detention and requested the Government to keep it informed in this regard.

35. In a communication dated 31 January 2001, the Government states that, as regards the arrest of Mr. Nguelani, national law does not grant trade union immunity in criminal cases and that there is no indication that his detention ordered by a judge on grounds other than trade union activity was used as a pretext to justify restriction of his exercise of freedom of association. Concerning his being placed in preventive custody for four months, the Government points out that this was within the law, since in criminal cases preventive custody is limited to six months.

36. As regards compensation for loss of his salary, the Government points out that national law provides that compensation may be awarded to a person who has been held in preventive custody during proceedings culminating in dismissal of the case, discharge or acquittal, where such detention caused manifestly unusual and particularly serious prejudice to the accused. The time limit for appeal is six months following the decision of dismissal, discharge or acquittal. In this case, according to the Government, it was up to Mr. Nguelani to claim this right within the prescribed time limit, failing which it would be time-barred. In the absence of evidence to the contrary, neither he nor his trade union confederation had availed themselves of this right.

37. The Committee notes the information provided by the Government and, in particular, the fact that according to it there was no indication that the detention of Mr. Nguelani ordered by a judge on grounds other than trade union activity had been used as a pretext to justify restriction of his exercise of freedom of association. However, the Committee recalls that in its previous examination of the case it had observed from the written statement made by the plaintiff, Ms. Oyane, which had been certified by Boové town hall and transmitted by the Government, that she affirmed that the labour inspector had strongly urged the plaintiffs to bring a charge against the CGSL representative for embezzlement of the sums paid, inter alia, for CGSL membership. This written statement had concluded by severely censuring the improper conduct of the labour inspector. The Committee had also noted that as a result of this charge, the CGSL representative had been held in preventive custody for four months, that his request for release on bail had been refused, and that the case had finally been dismissed. In these circumstances, although the Government refuses to see a link between Mr. Nguelani's legitimate trade union activity and the charges brought against him which led to his detention, the Committee can only reiterate the conclusions it had formulated during its previous examination of the case, i.e. that the arrest of trade unionists against whom no charge is brought involves restrictions on freedom of association.

Case No. 1970 (Guatemala)

Direct contacts mission in Guatemala

38. The Committee was informed that a direct contacts mission took place in Guatemala (23-27 April 2001) with respect to the follow-up given to its recommendations concerning Case No. 1970.

39. The Committee will examine this case at its November 2001 session in the light of the content of the mission report.

Case No. 1991 (Japan)

40. The Committee last examined this case concerning allegations of anti-union discrimination arising out of the privatization of the Japanese National Railways (JNR), at its November 2000 meeting (see 323rd Report, paras. 327-383). The Committee had urged all parties concerned to accept the Four Party Agreement, which set out conditions aimed at encouraging negotiations between the Japan Railway companies (JR companies) and the complainants with a view to reaching a satisfactory solution rapidly which would ensure that the workers concerned who were dismissed as a consequence of the privatization were fairly compensated. Noting that the issue of the non-recruitment of KOKURO members was pending before the Tokyo High Court, the Committee had also requested the Government to keep it informed of the outcome of the decision in this regard.

41. In a communication dated 17 January 2001, the Government indicates that the Tokyo High Court dismissed the appeals concerning the issue of the non-recruitment of KOKURO members. Since the list of candidates was prepared by the JNR, a separate legal entity, the High Court found that the "JR" companies could not be considered as "employers" with respect to the trade union members concerned, and thus had not committed an unfair labour practice in their recruitment practices. The Government states that the decisions have been further appealed to the Supreme Court. The Committee requests the Government to keep it informed of the outcome of the decision of the Supreme Court in this regard.

42. In a more recent communication dated 23 April 2001, the Government provides follow-up information concerning the outcome of KOKURO's 67th National Periodic Conference, where the Four Party Agreement and activity guidelines for its implementation were discussed. The activity guidelines were adopted by the Conference on 27 January 2001 and included the following:

(i) KOKURO would recognize that the JRs bear no legal responsibility and;

(ii) in negotiations towards a resolution of the dispute, KOKURO would seek to ensure hiring by the JRs of its members, payment of compensation, employment security, the eradication of all unfair labour practices and the establishment of sound labour management relations.

The Government adds that on 15 March 2001, the members of the Four Party Agreement (the Ruling Parties and the Social Democratic Party) convened the Four Party Consultation Committee in order to hear of the results of KOKURO's National Conference from its Executive Committee.

43. Noting that KOKURO has finally accepted the Four Party Agreement of 30 May 2000 which offers a real possibility of speedily resolving the issue of non-hiring by the JRs, the Committee urges all parties concerned to continue serious and meaningful negotiations with a view to reaching a satisfactory solution rapidly which would ensure that the dismissed workers concerned are fairly compensated. The Committee requests the Government to keep it informed of any progress in this regard.

Case No. 2078 (Lithuania)

44. The Committee last examined this case at its meeting in March 2001 when it requested the Government to take the necessary measures to amend the Act on the Settlement of Collective Disputes so as to ensure that the workers' and employers' organizations concerned participated in the determination of the minimum service to be provided and, in the event that no agreement is reached, to ensure that the matter is settled by an independent body. In the meantime, the Committee requested the Government to ensure that Decision No. 1443V was revoked and that any further requirement of minimum services in the event of a strike be determined in consultation with the workers' and employers' organizations concerned. Furthermore, the Committee requested the Government to amend or clarify section 13 of the Act on the Settlement of Collective Disputes so as to ensure that it was not used to restrict the right to strike in practice beyond what is permissible under accepted principles of freedom of association. Finally, the Committee requested the Government to keep it informed of any new developments in the negotiations taking place at the Vilnius bus and trolleybus enterprises (see 324th Report, paras. 592-622).

45. In a communication dated 10 May 2001, the Government indicates that the Supreme Court of Lithuania reviewed the appeal of the Vilnius Bus Depot, Ltd and upheld the Court of Appeals ruling that the motor-transport workers strike was legal. A collective agreement was signed at the enterprise on 6 February 2001 and there is no collective dispute at present. A new agreement is now being negotiated and the Government states that it will continue to provide information of the results in this regard.

46. The Committee takes due note of this information, in particular the Supreme Court's confirmation of the legality of the strike. It recalls however that its previous recommendations further indicated the need to amend the Act on the Settlement of Collective Disputes so as to ensure the participation of the workers' and employers' organizations concerned in the determination of any minimum services and the need to revoke Decision No. 1443V which set out the minimum service for passenger transportation services in Vilnius. The Committee requests the Government to keep it informed of the progress made in this regard.

Case No. 2034 (Nicaragua)

47. The Committee last examined this case, relating to unjustified dismissals of trade union officials, at its November 2000 meeting (see 323rd Report, paras. 397-407). On that occasion the Committee urged the Government to ensure that the trade union official Mr. Osabas Varela was reinstated in his post at the El Relampago plantation and any back wage owed to him paid. The Committee also requested the Government to keep it informed of any measures taken in this regard. Likewise, noting that both the administrative and the judicial authorities had ordered the reinstatement of the union officials dismissed at the Emma plantation, the Committee urged the Government to ensure that Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales were reinstated in their posts and any back wages paid. The Committee requested the Government to keep it informed of any measures taken in this regard.

48. In a communication dated 5 March 2001, the Government informs the Committee that the situation has not changed because the parties to the dispute have not exhausted the legal means provided for in national legislation to resolve social and labour disputes. The Government recalls that the complainant organization is obliged to proceed with the legal proceedings in place for the protection of workers' rights, given the limited scope of these matters in both space and time.

49. The Committee notes this information with regret and again requests the Government to adopt the necessary measures to ensure that Mr. Osabas Varela, Mr. Bayardo Munguía Fuentes and Mr. Manuel de Jesús Canales are reinstated in their posts and any back wages paid.

Cases Nos. 2092 and 2101 (Nicaragua)

50. The Committee last examined this case, concerning the dismissal of a trade union official, at its meeting in March 2001 (see 324th Report, paras. 717-733). On that occasion, the Committee drew up the following recommendations:

(a) In order to be able to give an opinion in full knowledge of the facts, the Committee requests the Government to supply the substance of the ruling handed down by the main Constitutional Division of the Supreme Court concerning the dismissals which were the subject of legal challenges, and of the ruling given by the criminal court dealing with the criminal proceedings initiated by the company against the ten trade union officials.

(b) The Committee requests the Government to ensure that trade union rights can be freely exercised at CHENTEX Garments S.A. without the workers being subject to reprisals for their legitimate trade union activities.

(c) The Committee is bound to emphasize the importance of the principle that both employers and trade unions bargain in good faith and make every effort to reach an agreement. In accordance with this principle, the Committee reminds the Government that appropriate measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of the terms and conditions of employment by means of collective agreements.

51. In its communication of 30 April 2001, the Government sent the Committee a copy of the ruling handed down by the main Constitutional Division of the Supreme Court concerning the dismissals which were the subject of legal challenges. This ruling ordered the reinstatement of nine trade unionists into their previous positions, under the same terms and conditions that had previously applied. As soon as the Government has been informed of the ruling handed down by the criminal court, it will send a copy to the Committee. The Government stated that the Ministry of Labour maintains a labour inspectorate in the export processing zone to ensure that workers are not subject to reprisals for carrying out their legitimate trade union activities, including employees at CHENTEX Garments S.A. Furthermore, the Government sent a copy of the collective agreement signed by the enterprise and the Trade Union of Independent Workers, which, in accordance with the country's labour laws, covers all workers of the enterprise. With its communication of 11 May 2001, the Government attaches a copy of the agreement concluded by the company and the complainant organization whereby: all the labour and criminal proceedings currently pending are withdrawn; four trade union leaders are reinstated into their jobs; and the phased-in reinstatement of 17 other workers is planned. The parties to the agreement further agree to resort to negotiation and dialogue to settle disputes.

52. The Committee notes this information with satisfaction.

Case No. 2006 (Pakistan)

53. The Committee last examined this case at its March 2001 meeting when it had noted with interest the restoration of: (i) the trade union rights of workers of the Pakistan Water and Power Development Authority (WAPDA); (ii) the registration and the legal status as collective bargaining agent of the WAPDA union; and (iii) the facility of check-off to the said union. The Committee had requested the Government to confirm that the ban on trade union activities in the Karachi Supply Company (KESC) had been lifted and further urged the Government to take the appropriate measures to ensure that the right of the KESC Democratic Mazdoor Union as collective bargaining agent was restored without delay. Finally, the Committee had requested the Government to keep it informed of any developments in respect of the WAPDA and KESC union officials who had been forcibly retired (see 324th Report, paras. 70-72).

54. In a communication dated 3 May 2001, the Government states that the restoration of the check-off facility to the KESC Democratic Mazdoor Union is under consideration of the Government. However, due to the adverse financial position of KESC, it may take a little more time for the restoration of trade union activities in KESC.

55. The Committee notes with serious concern that the Government merely repeats its previous argument that it will restore trade union rights in KESC as soon as the enterprise becomes viable and productive again (see 323rd Report, para. 427). The Committee deeply deplores the continuation of the ban on trade union activities in KESC which has been in place for two years now (since 31 May 1999). The Committee is therefore bound to remind the Government once again that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application based on a plea that an emergency exists (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 186). Furthermore, the Committee considers that the viability or productivity of an enterprise must not be a precondition for the guarantee of the fundamental rights of freedom of association. As a result, the Committee urges the Government to lift the ban on trade union activities in KESC and to restore the trade union and collective bargaining rights of KESC workers without delay. It requests the Government to keep it informed of developments in this regard.

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

Case No. 1796 (Peru)

57. The Committee last examined this case concerning dismissals of trade union leaders, at its June 2000 meeting (see 321st Report, paras. 58-60). On that occasion the Committee requested the Government to keep it informed of the final outcome of the proceedings involving the trade union leaders Mr. Delfín Quispe Saavedra and Mr. Iván Arias Vildoso.

58. In a communication dated 18 January 2001, the Government informed the Committee that it had written to the judiciary branch, requesting information regarding the current status of the legal proceedings instituted by Mr. Delfín Quispe Saavedra challenging the invalidity of his dismissal.

59. In a communication dated 24 February 2001, the General Confederation of Workers of Peru (CGTP) stated that the unlawful dismissal of trade union leader Mr. Iván Arias Vildoso was upheld by the courts that successively examined the case, in violation of his trade union immunity and his right to effectively challenge the decision of which he was the victim.

60. The Committee notes this information and again requests the Government to keep it informed of the final outcome of the proceedings instituted by the trade union leaders Mr. Delfín Quispe Saavedra and Mr. Iván Arias Vildoso.

Case No. 1813 (Peru)

61. The Committee last examined this case, concerning the murder of trade unionists, at its meeting in June 2000 (see 321st Report, paras. 61-62). On that occasion, the Committee deeply regretted that the facts of the case had not yet been clearly established and that those responsible for the killings in question, which took place in 1994, had not been identified and punished. The Committee accordingly hoped that the proceedings which were then under way would be concluded in the near future and requested the Government to keep it informed of the final outcome.

62. In a communication of 18 January 2001, the Government informs the Committee that the proceedings initiated in this case in connection with offences against the life, person and safety of individuals including David Segundo Castro ended on 28 September 1999 with the acquittal of those accused. On 19 January 2000, however, the case was referred to the First Criminal Court of Callao; the proceedings against the accused in their absence remain pending until such time as they are captured, and new warrants for their arrest have been issued.

63. The Committee takes note of this information and again expresses the hope that the judicial proceedings currently under way will be concluded in the near future, since justice delayed is justice denied. The Committee therefore once again requests the Government to keep it informed of the final outcome of the proceedings in question.

Case No. 1878 (Peru)

64. The Committee last examined this case, concerning inadequate collective bargaining between the Peruvian Social Security Institute and the Single Trade Union of Technicians and Specialized Auxiliaries of the Peruvian Social Security Institute (which now has the acronym SUTAESSALUD), at its meeting in June 1998 (see 310th Report, paras. 44-47). On that occasion, the Committee observed that talks between the parties appeared to have arisen informally, and that the complainant's concerns at that moment were the establishment of the joint committee and to ensure that reforms to the Act concerning collective labour relations created a legal framework in which collective bargaining between the parties could take place satisfactorily. Therefore, the Committee requested the Government to examine the reasons for which the joint committee had still not been set up, and to take measures to promote collective bargaining in 1998 at the Peruvian Social Security Institute.

65. In its communication of 31 January 2001, the Government informs the Committee that the absence of pay increases in the public sector is not a violation of constitutional law or any ILO Convention. In particular, Emergency Decree No. 011-99 grants single productivity bonuses that are applicable to all ESSALUD workers. The Government also states, with regard to the coexistence of two systems of labour legislation in the public sector, one being private and the other public, that workers covered by the latter are protected by Convention No. 151, and that it promotes negotiations on conditions of employment between the relevant public authorities and civil servants' organizations. Nonetheless, the Government states that bargaining should be restricted to general conditions of employment, excluding remuneration.

66. In its communications of 5 July and 25 October 1999, SUTAESSALUD states that the Government grants a single productivity bonus to workers in the sector, subject to a number of requirements to be met in an evaluation. As a result of this practice, those who fail to meet the criteria are declared redundant, thus contributing to mass lay-offs, as well as restricting collective bargaining.

67. The Committee notes this information with regret. Therefore, the Committee requests the Government to adopt measures to promote collective bargaining and points out that, according to the Committee of Experts, it is contrary to the principles of Convention No. 98 to exclude from collective bargaining certain issues such as those relating to conditions of employment, including remuneration. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 1944 (Peru)

68. The Committee last examined this case, concerning an anti-union dismissal, at its meeting in March 2000 (see 320th Report, paras. 61-65). On that occasion, the Committee was still waiting for information on the measures taken to reinstate the leader of the FNTPJ, Mickey Juán Alvarez Aguirre, in his job without loss of vested rights.

69. In a communication of 18 January 2001, the Government informs the Committee that Mr. Alvarez Aguirre was not reinstated following refusal to grant trade union leave, because the judicial authorities are in the process of reorganization required by law. The trade union leader's disregard for the orders of a superior and abandoning of his workplace resulted in administrative proceedings (the final report of which is supplied by the Government), at the end of which it was decided not to reinstate him, since his dismissal had been based on a serious misdemeanour which, under existing regulations, is deemed sufficient reason for dismissal.

70. The Committee notes this information with regret, and recalls that dismissal of trade union officials by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing free exercise of their trade union functions.

Case No. 2004 (Peru)

71. The Committee last examined this case, concerning the dismissal of a trade union official, at its meeting in November 1999 (see 318th Report, paras. 393-404). On that occasion, the Committee invited the Governing Body to approve the following recommendations:

(a) With regard to the dismissal of the trade union official, Mr. Benancio Aguilar Atahua, of the Unión de Cervecerías Peruanas Backus y Johnston S.A., the Committee, while noting that a judicial process is under way on this matter, considers that Mr. Benancio Aguilar Atahua should be reinstated in his post without loss of pay. It requests the Government to take all necessary measures to this end and to keep it informed in this regard.

(b) The Committee firmly trusts that the legal proceedings begun in October 1998 by the union official Mr. Aguilar Atahua in connection with his dismissal will be concluded in the near future. The Committee requests the Government to keep it informed of the court ruling which should be handed down swiftly.

72. In its communication of 24 April 2001, the Government informs the Committee that after the Constitutional and Social Division of the Supreme Court of Justice rejected the appeal lodged by the defendant, under the ruling of 19 September 2000, it ordered the reinstatement of the plaintiff. However, the plaintiff withdrew his claim before the court since he had reached an agreement with the enterprise, which offered him US$50,000 and the social benefits owed to him from 5 September 1998, the date of his dismissal, until 11 October 2000, the date of the agreement.

73. The Committee notes this information.

Case No. 2059 (Peru)

74. The Committee last examined this case, concerning anti-trade union dismissals and practices, at its meeting in November 2000 (see 323rd Report, paras. 457-477). On that occasion, the Committee made the following recommendations:

(a) The Committee requests the Government to carry out, as a matter of urgency, an inquiry into the alleged anti-union discrimination and intimidation perpetrated in the Banco Continental, and in particular into the allegations concerning pressure brought to bear on unionized workers to leave their union, the award of promotions or salary increases virtually exclusively to non-unionized workers, anti-union transfers, and economic incentives for workers - and unionized workers in particular - to resign from their employment, with dismissal as the only alternative. The Committee requests the Government to keep it informed in this respect.

(b) Considering that persons hired under training agreements should also have the right to organize, the Committee requests the Government to take the necessary steps so as to guarantee this right to the workers concerned both in law and in practice. Furthermore, the Committee requests the Government to ensure that the employment conditions of these workers are covered by the collective agreements in force in the enterprises where they are employed.

(c) The Committee notes that the proceedings concerning the dismissal of Messrs. Juan Manuel Oliveros Martínez and Jorge Mercado Puente de la Vega have already taken 14 months. The Committee, therefore, requests the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and stresses that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts. The Committee requests the Government to keep it informed in this respect.

75. In its communication of 30 March 2001, the Government informs the Committee that, according to the High Court of Justice, the action lodged on 4 December 1998 by Mr. Juan Manuel Oliveros Martínez against Banco Continental, his employer, regarding the invalidity of his dismissal allegedly based on the fact that the litigant was a "trade union activist", was initially declared unfounded by the Fifteenth Labour Court of Lima. Banco Continental denied that the dismissal was based on his alleged "trade union activism". After the case had been examined in other proceedings and the initial judgment upheld, on 21 December 2000 the Second Labour Court of Lima revoked said judgment and declared the petition founded in every respect. Therefore, it ordered the reinstatement of the complainant in his usual post, the payment of salaries not received from the date of dismissal until that of reinstatement, and the payment of accrued legal interest. The Government also undertook to send the Committee any information it received relating to the judicial proceedings of trade union leader Mr. Jorge Mercado Puente. It adds that the State respects trade union rights stemming from ILO international Conventions ratified by its country.

76. In a communication of 26 April 2001, the Government states that, on 9 September 1999, Mr. Jorge Mercado Puente de la Vega requested Banco Continental to rescind his discharge. The worker ultimately accepted a settlement proposal whereby the bank would pay him a fixed sum plus benefits, and the case has been closed.

77. The Committee notes with satisfaction the judicial decision ordering the reinstatement of a trade union leader. The Committee requests the Government to confirm that Mr. Oliveros Martínez has been reinstated. The Committee also takes note of the settlement concluded between Mr. Jorge Mercado Puente de la Vega and Banco Continental, which allowed the closing of this case. Furthermore, the Committee requests the Government to keep it informed of the other pending issues relating to the case.

Case No. 1826 (Philippines)

78. The Committee first examined this case in March 1996, at which time it urged the Government to take appropriate steps immediately to ensure that a certification election was conducted at the Cebu Mitsumi Inc. in Danao City. Two years before the Committee first examined the case, the petition for a certification election, signed by almost all the rank and file workers of Cebu Mitsumi, had already been filed by the Cebu Mitsumi Employees' Union (CMEU) (see 302nd Report, paras. 405-408). During its most recent examination of this case in November 2000, the Committee took note of information provided by the Government to the effect that the Department of Labour and Employment (DOLE) had issued an order for the holding of a certification election on 14 September 2000 (see 323rd Report, paras. 72-74).

79. In a communication of 4 May 2001, the complainant submits additional information in the form of a resolution from the Tenth International Metalworkers' Federation Asia-Pacific Conference (20-21 April 2001). According to the resolution, on 2 October 2000, the union and management of Cebu Mitsumi agreed to 28 November 2000 as the date of the certification election, and the management agreed to submit a verified list of qualified voters. On 19 October 2000, the management instead submitted an unverified list of voters; on 20 October, it filed a motion to suspend the election proceedings until after the May 2001 national and local elections. In addition, the president of CMEU, Mr. Ferdinand Ulalan, was suspended indefinitely on unfounded grounds. The resolution, therefore, calls on the management to withdraw its motion to suspend the election proceedings and to reinstate Mr. Ulalan, and calls on DOLE to expedite the scheduling and conduct of the local election not later than 14 May 2001, the date of the national and local elections.

80. The Committee deeply regrets the lengthy period that has elapsed since the petition for a certification election at the Cebu Mitsumi Inc. was first filed by CMEU, particularly in light of the fact that at that time, over seven years ago, the petition was signed by almost all the rank and file workers of the company. The Committee also notes with deep concern the new allegation that the president of CMEU has been suspended indefinitely on unfounded grounds. The Committee strongly urges the Government to ensure that an impartial certification election is held immediately at Cebu Mitsumi, and to consider examining the legal framework for certification elections, with a view to modifications that will guarantee that such excessive and potentially prejudicial delays will not take place in future. The Committee requests to be kept informed of any progress in this regard. The Committee also requests the Government to respond to the new allegation concerning the suspension of Mr. Ulalan.

Case No.1581 (Thailand)

81. The Committee last examined this case at its November 2000 meeting when it had trusted that the State Enterprise Labour Relations Act (SELRA), which had entered into force on 8 April 2000, would restore fully the right to organize and to bargain collectively to state enterprise employees. The Committee had also requested the Government to keep it informed of developments concerning the accompanying amendment to the Labour Relations Act which applies to the private sector (see 323rd Report, paras. 87-90).

82. In a communication dated 7 March 2001, the Government indicates that a copy of the SELRA of 2000 will be transmitted to the Office as soon as translation thereof is completed.

83. As regards the required accompanying amendment to the Labour Relations Act, the Government points out that the said draft amendment is being scrutinized by the Office of the Council of State. In this regard, the Council of State has taken into consideration all suggestions made by the main workers' and employers' organizations. The Government indicates that it will transmit a copy of the draft Labour Relations Act as soon as the Council of State finishes its reading.

84. The Committee takes due note of this information. It once again trusts that the SELRA and the draft Labour Relations Act grant fully the right to organize and to bargain collectively to state enterprise employees and private sector employees respectively. It requests the Government to send a copy of the SELRA as soon as translation thereof is completed, as well as of the draft Labour Relations Act as soon as the Council of State finishes its reading thereof.

Case No. 2018 (Ukraine)

85. The Committee last examined this case, which concerned among other things allegations of violation of the right to strike and judicial proceedings against the president of a union, at its November 2000 meeting (see 323rd Report, paras. 93-96). On this occasion, it had requested the Government to provide as soon as possible the amendments to the Transport Act, and to ensure that the criminal proceedings against the president of the complainant organization be carried out with diligence.

86. In its communication of 22 March 2001, the Government indicates that section 18 of the Transport Act provides that strikes in that sector can take place if the management of the enterprise does not apply the tariff agreements, except in cases of passenger transport, of supplies for factories which operate non-stop or when a strike represents a danger for the life and safety of the population. The Government adds that the Ministry of Transport is currently drafting amendments to the Transport Act, including provisions on strikes in that sector, and that it will send additional information once the Supreme Council has made a decision.

87. In a communication dated 20 April 2001, the Independent Trade Union of Workers of the Iyichevsk Maritime Commercial Port (NPRP) declares that the Government has still not complied with the Committee's recommendations and provides numerous examples of recent violations of trade union rights in the country.

88. The Committee takes note of this information. It recalls to the Government that neither passenger transport, nor the transport of supplies for factories which operate non-stop constitute essential services in the strict sense of the term where strikes can be totally prohibited; however, these services can be considered of primary importance where the requirement of a minimum service in the event of a strike can be justified. The determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers' and workers' organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 560-566). The Committee trusts that the Government will fully take account of these principles in the draft amendments of the Transport Act and ask to be kept informed in this regard. The Committee also requests the Government to send its observations concerning the allegations contained in the complainant's most recent communication.

Case No. 2075 (Ukraine)

89. The Committee last examined this case at its November 2000 meeting when it requested the Government to engage immediately in discussions with the All Ukrainian Trade Union "Solidarinost" with a view to establishing the data necessary for its registration and to indicate to the union any purely procedural formalities which might still need to be carried out by the union so that it may be registered without delay. The Committee further called upon the Government to take the necessary measures without delay to ensure the reactivation of the union's bank account (see 323rd Report, paras. 506-524).

90. In communications dated 29 March and 5 May 2001, the Government indicates that the All Ukrainian Trade Union "Solidarinost" had lodged an appeal with the arbitration college to review the ruling by the Supreme Arbitration Court dated 6 April 2000. The arbitration college upheld the Supreme Arbitration Court's previous ruling and a subsequent protest was made to the Arbitration Presidium which, on 15 February 2001, also upheld the original ruling. The Government adds that the trade union has thus far not submitted the documents required for registration.

91. The Committee takes due note of this information. It recalls, however, that the Government had been requested to engage actively in discussions with the All Ukrainian Trade Union "Solidarinost" with a view to establishing the data necessary for its registration. It further recalls that at the time of its initial examination of this case, the Committee had also noted the difficulties of registration arising out of the provisions of the Act on Trade Unions, their Rights and Safeguard of their Activities which, it had concluded, were not compatible with the provisions of Convention No. 87 (ratified by Ukraine) and which were subsequently found unconstitutional by the Constitutional Court of Ukraine. In this regard, the Committee notes with interest the ILO technical assistance mission which took place in Ukraine from 23 to 27 April 2001 to advise, inter alia, on the legislative provisions concerning registration. It hopes that the Government will take the necessary measures in the near future to ensure that the registration requirements do not place obstacles in the right of workers to form organizations for the defence of their social and economic interests and that such measures will also facilitate the registration of the All Ukrainian Trade Union "Solidarinost". It requests the Government to keep it informed of the progress made in this regard as well as the measures taken to ensure the reactivation of the union's bank account.

Case No. 2080 (Venezuela)

92. At its meeting in March 2001, the Committee examined this case, in which the complainant had disputed the legitimacy of a trade union voting procedure in which non-union members had participated and the purpose of which had been to bring about the merger of two trade unions in the Caracas metro sector. More specifically, the complainant had challenged a decree by the former Minister of Labour dated 23 November 1999, which had legalized the merger of the two unions representing employees of C.A. Metro de Caracas and the election of a new union committee of the C.A. Metro de Caracas Workers' Union. The Committee considered that the Minister's decree violated the most elementary principle of freedom of association, i.e. that only trade union members can decide on their trade union structures and the composition of the unions' executive bodies. The Committee strongly rejected this type of statement, and urged the Government to respect Convention No. 87 and not to interfere in the internal affairs of trade union organizations.

93. The Committee concluded its examination with the following recommendations (see the 324th Report of the Committee, paras. 995-1013):

-- Noting that the Government has violated Convention No. 87, the Committee hopes that the courts will annul the decree issued by the former Minister of Labour on 23 November 1999, as well as the trade union merger of SITRAMECA and ASUTMETRO, and urges the Government to ensure that this process only takes place if initiated by the trade union members of both organizations in full freedom.

-- The Committee requests the Government to keep it informed of developments in the situation.

94. In its communications of 11 and 25 March 2001, the Government attaches a copy of the Supreme Court of Justice Ruling of 8 March 2001, which renders null and void the decree of the Minister of Labour of 23 November 1999.

95. The Committee notes this information with satisfaction.

96. Finally, as regards Cases Nos. 1512/1539 (Guatemala), 1618 (United Kingdom), 1843 (Sudan), 1849 (Belarus), 1851 (Djibouti), 1877 (Morocco), 1880 (Peru), 1884 (Swaziland), 1890 (India), 1895 (Venezuela), 1922 (Djibouti), 1937 (Zimbabwe), 1938 (Croatia), 1939 (Argentina), 1942 (Hong Kong Special Administrative Region, China), 1952 (Venezuela), 1953 (Argentina), 1957 (Bulgaria), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1966 (Costa Rica), 1967 (Panama), 1975 (Canada/Ontario), 1980 (Luxembourg), 1984 (Costa Rica), 1992 (Brazil), 1996 (Uganda), 2005 (Central African Republic), 2007 (Bolivia), 2009 (Mauritius), 2010 (Ecuador), 2012 (Russian Federation), 2014 (Uruguay), 2019 (Swaziland), 2022 (New Zealand), 2024 (Costa Rica), 2027 (Zimbabwe), 2030 (Costa Rica), 2031 (China), 2037 (Argentina), 2038 (Ukraine), 2042 (Djibouti), 2048 (Morocco), 2051 (Colombia), 2053 (Bosnia and Herzegovina), 2056 (Central African Republic), 2058 (Venezuela), 2060 (Denmark), 2065 (Argentina), 2069 (Costa Rica), 2072 (Haiti), 2076 (Peru), 2081 (Zimbabwe), 2084 (Costa Rica), 2085 (El Salvador) and 2091 (Romania), 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. 1785 (Poland), 1914 (Philippines), 1925 (Colombia), 1965 (Panama), 1972 (Poland), 1973 (Colombia), 2015 (Colombia), 2035 (Haiti), 2043 (Russian Federation) and 2047 (Bulgaria), which it will examine at its next meeting.