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 1, 2 and 9 November 2001, under the chairmanship of Professor Max Rood.

2. The members of Chilean, Japanese, Mexican, Pakistan and Venezuelan nationality were not present during the examination of the cases relating to Chile (Case No. 2135), Japan (Case No. 2114), Mexico (Case No. 2013), Pakistan (Case No. 2096) and Venezuela (Case No. 2067), respectively.

3. Currently, there are 76 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 16 cases on the merits, reaching definitive conclusions in seven cases and interim conclusions in nine 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. 2128 (Gabon), 2129 (Chad), 2130 (Argentina), 2131 (Argentina), 2133 (The former Yugoslav Republic of Macedonia), 2136 (Mexico), 2137 (Uruguay), 2139 (Japan), 2140 (Bosnia and Herzegovina), 2142 (Colombia), 2143 (Swaziland), 2144 (Georgia), 2147 (Turkey), 2148 (Togo), 2150 (Chile), 2151 (Colombia), 2152 (Mexico), 2154 (Venezuela), 2155 (Mexico), 2156 (Brazil), 2157 (Argentina) and 2158 (India), because it is awaiting information and observations from the governments concerned. All these cases relate to complaints 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. 1787 (Colombia), 1865 (Republic of Korea), 2036 (Paraguay), 2120 (Nepal) and 2124 (Lebanon).

Partial information received from governments

6. In Cases Nos. 1962 (Colombia), 1986 (Venezuela), 2046 (Colombia), 2068 (Colombia), 2082 (Morocco), 2086 (Paraguay), 2087 (Uruguay), 2088 (Venezuela), 2097 (Colombia), 2098 (Peru) and 2149 (Romania), 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. The Committee has also decided to adjourn Case No. 2114 (Japan) for which the Government already furnished a reply. In view of the fact that the Government has indicated that a reform of the public service personnel system is under consideration, the Committee will examine this case at its next meeting in the light of any further information that the Government may provide on developments in this regard.

Observations received from governments

7. As regards Cases Nos. 1888 (Ethiopia), 1948 (Colombia), 1955 (Colombia), 2079 (Ukraine), 2104 (Costa Rica), 2115 (Mexico), 2119 (Canada/Ontario), 2121 (Spain), 2123 (Spain), 2125 (Thailand), 2126 (Turkey), 2127 (Bahamas), 2132 (Madagascar), 2134 (Panama), 2138 (Ecuador), 2141 (Chile), 2145 (Canada/Ontario), 2146 (Yugoslavia) and 2153 (Algeria), 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 Cases Nos. 1995 (Cameroon) and 2118 (Hungary), the Committee observes that, despite the time which has elapsed since the submission of the complaints, it has not received the observations of the governments. The Committee draws the attention of the governments in question to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it may present a report on the substance of these cases if their observations or information have not been received in due time. The Committee accordingly requests these governments to transmit or complete their 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: Belarus (Case No. 2090) and Venezuela (Case No. 2067).

Transmission of cases to the Committee of Experts

10. 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: Pakistan (Case No. 2096), Slovakia (Case No. 2094), Venezuela (Case No. 2067) and Zimbabwe (Case No. 1937).

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

Case No. 1963 (Australia)

11. The Committee last examined this case, which concerns violations of freedom of association arising out of actions related to the 1998 waterfront dispute and affecting workers in stevedoring operations at various Australian ports, at its June 2001 meeting. The Committee requested the Government to continue providing information on outstanding court proceedings and to forward the decisions once they have been issued (see 325th Report, paras. 12-14). In a communication of 18 September 2001, the Government announces that Patrick Stevedores and the Maritime Union of Australia have negotiated a new enterprise bargaining agreement, with effect on 17 September. The Government indicates that, in two related proceedings brought against the Government and one of the companies involved (Container Terminal Management Services Ltd.) in the federal courts of Brisbane and Melbourne, the proceedings have been dismissed against the Government but are continuing against other respondents.

12. The Committee notes this information. It requests the Government to continue to provide information on relevant court proceedings and to forward decisions once they have been issued.

Case No. 2102 (Bahamas)

13. The Committee examined this case at its June 2001 meeting (see 325th Report, paras. 97-110) where it made the following recommendations:

(a) Expressing the firm hope that full consultations with the social partners will take place in good faith concerning the five draft Bills, and that the further amended Bills will comply with freedom of association principles, the Committee requests the Government and the complainants to keep it informed of the results of the working groups and to forward the final draft of the Bills prior to their adoption by Parliament so that the Committee may examine the conformity of the Bills with freedom of association principles.

(b) The Committee draws the Government's attention to the continued availability of ILO technical assistance in bringing the legislation into conformity with the principles of freedom of association and Convention No. 98, which has been ratified by the Bahamas.

14. In a communication dated 17 August 2001, the Government indicates that, contrary to the allegations of the workers' organizations, tripartite consultations have taken place continuously since October 1996. After tabling the Bills in May 2000, which drew complaints from unions, bipartite dialogue and consultation were again initiated in October 2000; an average of three meetings were held monthly through April 2001. Extensive reviews were concluded on the Trade Union and Industrial Relations Bill (which the unions found the most objectionable) and the Employment Bill; most of the recommendations emanating from these consultative meetings have now been incorporated in amended drafts. The Government proposes to proceed with three of the five Bills initially tabled, i.e. the Employment Bill, the Occupational Health and Safety at Work Bill, and the Minimum Wage Bill. The Government also rejects the worker's earlier assertion that their rights are in limbo due to constitutional uncertainties surrounding the Industrial Tribunal; in fact, the Industrial Tribunal continues to sit, hear and decide cases before it. The Government states that copies of the Acts will be submitted to the ILO after passage through legislature.

15. The Committee takes note of this information and, in particular that extensive consultations have taken place as regards some of these Bills. The Committee however notes with concern that the Government intends to communicate these pieces of legislation after their adoption, and not prior to it, as the Committee had initially recommended, so that it could examine their conformity with freedom of association principles. In these circumstances, the Committee is bound to reiterate its previous recommendation that full consultation take place with the social partners on all these issues, that the further amended Bills comply with freedom of association principles and that these be forwarded to the Committee before their adoption. The Committee once again draws the Government's attention to the availability of ILO technical assistance on all these issues, and requests the Government to keep it informed of developments in this matter.

Case No. 2007 (Bolivia)

16. The Committee last considered this case at its meeting of March 2000, where its requested the Government to initiate mediation efforts with a view to helping the parties to reach a global solution (reinstatement or, if this is not possible on account of the time that has elapsed, financial compensation if not yet received) for the alleged acts of anti-trade union discrimination, in particular, bearing in mind that months after the collective agreement on the dispute, signed 5 May 1997, the employment contracts of many strikers have not been renewed. Mediation should further endeavour to find a solution to the criminal and civil suits that have been brought by both parties in connection with the strike, dating back to April 1997. The Committee also asked to be kept informed of developments and of judicial decisions (see 320th Report, para. 285).

17. In its communication of 19 July 2001, the Government states that, through mediation, the parties involved in this case reached a global solution, as recommended by the Committee, as regards both financial compensation and court cases. This final solution was achieved through consultation and conclusion of two transactional agreements. The first of these agreements was signed on 17 February 2000 between the company and leaders of the Federation of Factory Workers. The agreement was ratified and complemented by a second transactional agreement of 2 October 2000 between the company and the workers directly involved. These documents essentially provide for the following agreements whereby the dispute is terminated: (1) the employer undertakes to withdraw unconditionally the suits brought against former employees and renounces any compensation for damages caused during and as a result of the strikes; (2) the workers involved likewise withdraw their suits against the company; (3) both parties agree to recognize that social benefits were paid and collected in timely fashion, but decide to carry out a tripartite review of the corresponding payments in one month's time.

18. The Committee takes note of this information with satisfaction.

Case No. 2099 (Brazil)

19. The Committee last examined this case concerning allegations of the failure to engage in collective bargaining, exclusive bargaining with higher level trade union organizations, discrimination against trade union officers and insufficient protection against arbitrary dismissal at its June 2001 meeting (see 325th Report, paras. 182-196). On that occasion the Committee made the following recommendations:

(a) The Committee requested the Government to keep it informed of the outcome of the projected negotiations on the participation of employees of Banco do Brasil S.A. concerning profit-sharing arrangements.

(b) The Committee recalled that according to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level was essentially a matter to be left to the discretion of the parties. The Committee also emphasized that the imposition by law of a trade union monopoly was not compatible with the principles of freedom of association, and therefore urged the Government to ensure that national law was brought into conformity with those principles.

(c) Although the Committee did not consider the reduction in the number of trade union representatives authorized to carry out their duties at the cost of the enterprise to be contrary to the principles of freedom of association, given that it was the result of collective bargaining, it requested the Government to prevent any discrimination between trade unions in that context.

20. In a communication dated 16 August 2001, the Government informs the Committee that in the past two months Banco do Brasil has held various meetings with its employees on their sharing in the profits and results of the enterprise. It states that it will continue to endeavour to reach an agreement with legally authorized trade unions.

21. With regard to the trade union monopoly, the Government reiterates that it does not discriminate between trade unions by negotiating exclusively with CONTEC, according to which CTNIF is neither legal nor constitutionally competent to represent employees at the negotiations. The Government also states that as the Constitution prohibits the establishment of more than one trade union organization at any level representing a professional or economic category in the same territorial division, CONTEC requested in law that the registration of CTNIF as a trade union be cancelled, and this took place on 18 December 2000.

22. Finally the Government states that, according to national legislation, trade union leaders at the Banco do Brasil have paid time off to carry out their trade union duties, entirely at the cost of the enterprise according to the collective agreements that the enterprise holds with its trade union bodies. The Government adds that of the 92 trade union leaders with paid time off to carry out their trade union duties at the cost of the enterprise, 30 are members of CONTEC and 62 are members of trade unions that are not affiliated to the latter.

23. The Committee takes due note of this information. It notes that 62 of the 92 trade union leaders at the Banco do Brasil belong to trade unions that are not affiliated with CONTEC. However, it deplores that the CTNIF was struck from the trade union registry and invites the Government to take the necessary measures to repeal the provisions setting forth a trade union monopoly.

Case No. 1989 (Bulgaria)

24. The Committee last examined this case at its meeting in June 2001 when it requested the Government to keep it informed of the outcome of the court cases which were pending concerning the workers dismissed from the Bulgarian State Railways (BSR), as well as the number of workers actually reinstated. The Government was also requested to keep the Committee informed of the findings of the independent commission set up to investigate the allegations of harassment of members of the Trade Union of the Engine Personnel of Bulgaria (TUEPB) by the BSR (see 325th Report, paras. 18-20).

25. In a communication dated 28 August 2001, the Government indicates that, under the court orders in force, the fired engine drivers are reinstated in their previously held positions and that further information will be transmitted concerning the outcome of the investigations into the complaints of alleged harassment of members of the TUEPB.

26. The Committee takes due note of this information. It once again requests the Government to keep it informed of the outcome of the independent commission established to examine the allegations of harassment and anti-union discrimination against the members of the TUEPB.

Case No. 2047 (Bulgaria)

27. The Committee last examined this case at its meeting in November 2000 when it requested the Government to keep it informed of the outcome of the counting of the membership of PROMYANA and ADS (the Association of Democratic Syndicates). The Committee also requested the Government to indicate whether the proposed amendment to the Labour Code concerning the maximum duration of a collective agreement reflected tripartite agreement (see 323rd Report, paras. 42-44).

28. In a communication dated 15 January 2001, ADS indicated that amendments have been adopted to the Labour Code (annexed to their communication) which it considers further supports the monopoly and discrimination exercised by the Confederation of Independent Trade Unions of Bulgaria (CITUB) and CL "Podkrepa" at the national level, to the exclusion of ADS from the social dialogue and collective agreements. While having no problem with the article of the Labour Code which sets forth that only representative trade unions can participate in the National Tripartite Council (NTC), ADS considers that using the same representativeness criteria for participation on branch, field and municipality tripartite councils is discriminatory. Thus, only representative organizations can take part in collective bargaining at the branch or field level and, as such agreements can be extended to all enterprises in the given branch or field by the Minister of Labour, it effectively restricts the rights of other organizations to negotiate collective agreements at the enterprise level. The complainant also states that its exclusion from the NTC was unlawful and contrary to the Supreme Administrative Court judgements that had determined that the previous criteria for representativeness were unconstitutional. Finally, the complainant adds that a poll of trade union membership has never been conducted in Bulgaria, nor is there any law to provide for trade union elections for representativeness.

29. In a communication dated 28 August 2001, the Government states that the complainant's allegations are groundless and founded on misleading interpretations of the recent amendments to the Labour Code which came into force on 31 March 2001. The Government recalls that the objective and pre-established criteria set forth in the Labour Code are aimed at recognizing the representativeness of each workers' organization and reiterates its readiness to conduct a poll to determine whether PROMYANA and ADS meet the necessary requirements for participation in the NTC. The Government adds that the mechanism for conducting a union poll fully meets the requirements of European standards and states that an order is being elaborated under section 36 of the Labour Code concerning the availability of criteria for representation. The Government states that ADS participated in the discussions of the proposed amendments and adds that all trade unions have full and unlimited rights to participate in negotiations at enterprise level. As for the possibility of extending collective agreements to all enterprises in a given branch, the Government clarifies that an extension can only be considered when it has been generally requested by the representative workers' and employers' organizations. Finally, the Government challenges the criticism that the amendments endorse discrimination and a monopolistic structure, since the Labour Code provides for verification of the representative status every three years.

30. The Committee takes due note of the information provided by the complainant and by the Government. The Committee considers that the amendments to the Labour Code, which provide that only representative organizations may participate in tripartite councils at national, branch, field or municipal level, are not contrary to the principles of freedom of association, given that the criteria for establishing representative status under section 3(3) of the Labour Code has already been considered by the Committee to be in conformity with these principles. The Committee also considers that the extension of branch or field-level collective agreements upon the joint request of the parties involved is consistent with freedom of association principles. The Committee urges the Government, however, to take the necessary measures rapidly in order to conduct a poll to determine whether PROMYANA and ADS meet the necessary requirements to establish representativeness for participation in the NTC and to keep it informed of the progress made in this respect.

Case No. 1951 (Canada/Ontario)

31. The Committee has examined this case on several occasions, and for the last time at its June 2001 session (see 325th Report, paras. 197-215) when it formulated the following recommendations:

(a) Stressing once again that the Government should ensure that the unions are fully consulted when general policies affecting them are formulated, and that in all cases free collective bargaining should be allowed on the consequences on conditions of employment of decisions on educational policy, the Committee requests the Government to keep it informed in this regard.

(b) The Committee urges the Government to amend the legislation to ensure that school principals and vice-principals may form and join organizations of their own choosing, have access to collective bargaining, and enjoy effective protection from anti-union discrimination and employer interference. The Committee requests the Government to keep it informed in this regard.

(c) The Committee urges the Government to ensure in future that, when it seeks to alter the bargaining structure in which it acts directly or indirectly as an employer, such changes are preceded by an adequate consultation process, whereby all objectives can be discussed by the parties concerned.

32. In its communication of 13 September 2001, the Government explains that the Ontario Government had previously indicated that the Ontario Court of Appeal dismissed the complaint brought by the Ontario Secondary School Teachers' Federation (OSSTF). The OSSTF filed a leave to appeal application which the Supreme Court of Canada dismissed in March 2001. The Government of Ontario maintains its position that Bill No. 160 necessarily removes principals and vice-principals from a position of conflict arising out of their duty to manage the schools and their loyalty to other members of the union. As Ontario's position has been supported by the Canadian courts, it has no plans to amend Bill No. 160.

33. The Committee notes that the Government reiterates the arguments it had put forward in the past. The Committee recalls that the complaint in this case was filed more than three years ago and therefore regrets that the position of the Government of Ontario has not evolved since. While taking due note of the various courts' rulings, the Committee considers that the Government of Ontario should be reminded that the Canadian Government has freely ratified Convention No. 87 and, therefore, the provisions of this Convention should be fully respected in law and in practice in all Canadian provinces. While noting that the Ontario Government has no intention of amending Bill No. 160, the Committee regrets that the said Government has not provided any follow-up information concerning its other recommendations, in particular with regard to ensuring that unions are fully consulted when general policies affecting them are formulated and that in all cases free collective bargaining should be allowed on the consequences on conditions of employment of decisions on educational policy. The Committee once again asks the Government to reconsider its position in this case, including the amendment of Bill No. 160, in order to fully respect the principles of freedom of association and asks it to keep it informed in this regard.

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

34. The Committee examined this case at its November 1998, November 1999, March 2000 and March 2001 meetings (see respectively: 311th Report, paras. 235-271; 318th Report, paras. 26-34; 320th Report, paras. 44-53; and 324th Report, paras. 30-42) and, on that last occasion, made the following recommendations:

- in respect of 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 40);

- regarding 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 41);

- as regards the scope of protection against acts of anti-union discrimination, the Committee noted that legislative amendments empowering the Labour Tribunal to order reinstatements without the employer's consent would be presented to the competent councils of the HKSAR (Hong Kong Special Administrative Region) Government and trusted that these amendments would be adopted in the near future (paragraph 38);

- concerning the right to bargain freely with employers, the Committee once again requested 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 (paragraph 39).

35. In its communication of 10 September 2001, 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 involved could become an officer of the union. The Government reiterates that flexibility is built into this section for persons from other trades to become union officers with the consent of the Registrar of Trade Unions. The Government underlines that the Registrar has approved all applications from trade unions asking for his consent under section 17(2). Therefore, the existing provision has not in practice restricted the freedom of unions to elect officers of their choice.

36. In addition, the Government has reviewed the occupational requirement for trade union officers stipulated in section 17(2) of the TUO 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). The LAB considered the results of a survey conducted by employee members of the board and arrived at a consensus view that the current occupational requirement for union officers should not be relaxed. The Government will take the views of the LAB into full consideration in deciding on the way forward.

37. As regards the use of trade union funds, the Government has 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. 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.

38. Concerning the scope of protection against anti-union discrimination, the LAB agreed that the reinstatement provisions under the Employment Ordinance 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. Drafting of the relevant legislative amendments is under way.

39. 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 employers' and workers' unions and to consult them on employment matters. During the months of June and July 2001, the authorities launched a large-scale promotional activity entitled "Workplace Cooperation 2001" to promote the importance and benefits of workplace cooperation. The event featured a wide range of activities, including seminars, workshops, training courses, quiz competitions, visits and experience-sharing sessions.

40. At the industry level, in August 2001 the Government set up another tripartite committee for the retail industry. To date, nine such committees have been set up for the construction, catering, property management, hotel and tourism, printing, theatre, warehouse and cargo transport, cement and concrete as well as the retail industries. These committees have been holding regular meetings to discuss and agree on industry-specific issues of mutual concern. Through close collaboration with the tripartite committees, the Government has produced a code of practice for the catering trade, a practical guide on distinguishing employer-employee relationships from contractor-subcontractor relationships for the warehouse and cargo transport industry, as well as a guidebook on training opportunities for skills upgrading in the printing industry. A new booklet on the rights and obligations for practitioners of the tourism industry under major labour legislation is being prepared.

41. The Government concludes that its policy is to make progressive improvements to employees' rights and benefits in the territory, taking into full account the current social and economic circumstances and also the views of the LAB. It also seeks to maintain a reasonable balance between the interests of employees and employers.

42. 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 into 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 a 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).

43. As regards the use of union funds, while noting that a debate took place in the LAB on this issue, which considered it undesirable to relax the use of union funds for political activities other than for local elections 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 repeal sections 8 and 9 of the ELRO.

44. The Committee notes with interest that the LAB agreed that the reinstatement provisions under the Employment Ordinance should be amended so that the Labour Tribunal may make an order of reinstatement/re-engagement without the need to secure the employer's consent if the Tribunal considers it appropriate. The Committee trusts that these amendments will be adopted in the near future.

45. As regards the issue of promoting 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 conditions of work with employers is an essential element of freedom of association and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. Since the Committee had previously considered that the case at hand furnished a clear illustration of the appropriateness of adopting provisions laying down objective procedures for determining the representative status of trade unions for collective bargaining purposes, the Committee once again requests the Government to give serious consideration to the adoption of appropriate provisions which respect freedom of association principles.

46. 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. 1925 (Colombia)

47. The Committee last examined this case at its June 2000 meeting (see 322nd Report, para. 4). On that occasion, the Committee noted the Government's communication indicating that a tripartite negotiating committee would be set up together with the AVIANCA company and the trade union. The Committee requested the Government to keep it informed in this regard. In a communication dated 5 April 2001, the Government states that a negotiation meeting was held between AVIANCA and SINTRAVIA on 13 February 2001 under the auspices of the Ministry of Labour and that, as a result, the President of the complainant organization stated that it would submit a proposed agreement to AVIANCA.

48. The Committee takes note of this information and requests the Government to continue to keep it informed of progress achieved in the negotiations.

Case No. 1973 (Colombia)

49. The Committee last examined this case at its March 2001 meeting (see 324th Report, paras. 317-325). On that occasion, the Committee requested the Government, as regards the application of an agreement - that contains conditions of employment and remuneration higher than those agreed to through collective agreement - to managerial or technical staff and to staff employed in positions of trust on condition that they do not join or that they leave either of the two first-level trade union organizations present in the enterprise ECOPETROL, to take measures to ensure that the inquiry proposed be begun immediately and to keep it informed of the outcome. In a communication dated 5 April 2001, the Government indicates that on 12 March 2001 a negotiation meeting was held between representatives of ADECO and ECOPETROL, at which the former confirmed the complaints that gave rise to this case, while the ECOPETROL representative stated that more time was needed before a decision could be reached.

50. The Committee takes note of this information and once again urges the Government to take the necessary measures to ensure that the inquiry requested is carried out without delay and to keep it informed in this regard.

Case No. 2015 (Colombia)

51. The Committee last examined this case at its March 2001 meeting (see 324th Report, paras. 326-339). On that occasion, the Committee requested the Government to take steps to ensure the prompt conclusion of the current or planned investigations concerning: (a) the military takeover of workplaces in the Naval Hospital of Cartagena and the Central Military Hospital of Bogotá during the national protest action of 20 and 21 May 1998; (b) the destruction of posters alluding to the protest movement in the Central Military Hospital of Bogotá and the assaults on trade unionists during the national protest action of 20 and 21 May, leaving 42 of them wounded; and (c) the refusal to grant time off for trade union activities, anti-union harassment, an increase in the working day in violation of an agreement, and the assignment of civilian employees to armed conflict zones. The Committee also requested it to keep it informed of the outcome of these investigations.

52. In a communication dated 5 April 2001, the Government states that negotiation meetings were held on 21 February and 2 March 2001 between the ASEMIL trade union and the Director-General of the Central Military Hospital and the head of the legal office of the Ministry of Defence, under the auspices of the Ministry of Labour and Social Security in the context of Case No. 2015.

53. The Committee notes that the minutes of the negotiation meeting reflect that the following issues were covered: the granting of trade union leave, payment of wages due as ordered by the Constitutional Court, and the assignment of civilian workers to armed conflict zones. The Committee regrets that the Government has not stated whether the investigations that have been initiated were completed and requests it to inform it without delay of their outcome.

Cases Nos. 1966 and 2030 (Costa Rica)

54. Concerning Case No. 1966, at its March 2001 meeting the Committee requested the Government to provide it with the text of the amended Code as soon as it is adopted (see 324th Report, para. 52). The Government states in its communication of 25 May and 24 August 2001 that it will send the text of the law as soon as it is adopted.

55. As regards Case No. 2030, at its March 2001 meeting, the Committee requested the Government to send the decision of the Administrative High Court concerning decision 18-97 of 17 April 1997 taken by the Administrative Board of the National Registry as soon as it is handed down (see 324th Report, para. 55). In a long communication of 12 February 2001, the Rerum Novarum Confederation of Workers replies to the arguments put forward by the Government in its last communication to the Committee and mentions the negative impact of the decision of the Constitutional Chamber regarding collective bargaining in the public sector and insists that the previous agreement on collective bargaining in the public sector was extremely restrictive and had been criticized by the Committee. In its communications of 25 May and 24 August 2001 the Government states that the judicial authority has rejected the complaint lodged by the Trade Union of Workers and Retirees of the National Registry and that no appeal has been lodged against that ruling (which has been transmitted).

56. The Committee takes note of this information. It draws the attention of the complainant organization to the fact that the issue of the right to bargain collectively in the public sector will be dealt with in the context of Case No. 2104.

Case No. 1984 (Costa Rica)

57. At its March 2001 meeting, the Committee made the following recommendations on pending issues (see 324th Report, para. 458):

- with regard to the allegations concerning the enterprise Oropel (anti-union reprimands addressed to the trade union official Mr. Roberto Durán in the context of trade union persecution) and to the enterprise Roble (harassment of the trade unionist Mr. Luis Pérez Jarquín, blaming him alone for a poor harvest), the Committee notes that during the conciliation proceedings the trade union representative asked that these matters be transferred to the General Labour Inspectorate. The Committee asks the Government to keep it informed of the results of the investigation conducted into this matter;

- as regards the allegations concerning the banana enterprise Ceibo (persecution of SITRAP members), the Committee urges the Government to ensure that this matter is promptly investigated.

58. With its communications of 25 May and 24 August 2001, the Government forwarded the text of the administrative decisions that concluded the case of Mr. Roberto Durán (as unfair labour practices were not found to exist), dismissed the complaint relating to the alleged harassment of Mr. Luis Pérez Jarquín (considering that the facts denounced did not correspond to acts of anti-union persecution but to job-related activities involving the internal administration of the enterprise) and dismissed the complaint relating to the persecution of SITRAP members and the administrative appeal proceedings.

59. The Committee notes this information.

Case No. 2024 (Costa Rica)

60. Regarding Case No. 2024, at its March 2001 meeting the Committee noted the Government's statement that the judicial proceedings against the enterprise COBASUR (dismissal of the trade union official Mr. Adrián Herrera Arias, alleged aggression inflicted on this trade union leader) are paralysed because it has not been possible to notify the company that documents have been drawn up to correct the process and make it more flexible. The Committee noted this situation with concern, in particular the inability to notify the company, expressed the hope that the proceedings would be concluded as soon as possible and requested the Government to keep it informed of the outcome (see 324th Report, para 54). In its communications of 25 May and 15 September 2001, the Government states that, concerning the alleged assaults against the trade union leader Mr. Adrián Herrera Arias, the case was closed since the deadline to initiate criminal proceedings had expired. Concerning the dismissal of that leader, the Government indicates that Mr. Herrera Arias received his severance benefits since he needed money and that he had not lodged another complaint since then. The Government adds that, according to Mr. Herrera Arias, the enterprise was now closed following bankruptcy.

61. The Committee notes this information with regret. It insists on the fact that cases of anti-union discrimination should be examined in the framework of a prompt procedure.

Case No. 2069 (Costa Rica)

62. At its March 2001 meeting, the Committee requested the Government to keep it informed of the process and outcome of the negotiations provided for in the agreement of 22 June 1999 reached between the Ministry of Public Education and the trade unions, whereby as from the 2000 school year the Ministry will negotiate the school calendar with the trade union organizations, incorporating trade union activities and granting the necessary leave to attend national assemblies and sessions of executive committees (see 324th Report, paras. 464 and 466).

63. In its communication dated 24 August 2001, the Government sends an agreement of May-June 2001 signed by the Minister of Public Education and the teachers' organizations whereby the issues that remained pending are settled satisfactorily.

64. The Committee notes this information with satisfaction.

Case No. 2084 (Costa Rica)

65. At its March 2001 meeting, the Committee requested the Government to keep it informed of the final administrative decisions and judicial verdicts handed down in relation to the case of trade union leader Mr. Mario Alberto Zamora Cruz to enable it to reach a decision in this case (see 324th Report, para. 484).

66. In its communications of 25 May and 24 August 2001, the Government states that the Attorney-General has not yet handed down a decision concerning the defamatory and libellous complaint filed by Mr. Zamora against the Minister of Justice. Furthermore, Mr. Zamora has lodged a succession of appeals against the members of the Civil Service Tribunal for absolutely unfounded irregularities and incidents relating to the disciplinary proceedings being taken against him, thus employing delaying tactics in order to invoke the prescription.

67. The Committee notes this information and reiterates its earlier requests for information concerning the final administrative decisions and verdicts relating to this case.

Case No. 1954 (Côte d'Ivoire)

68. In the previous examination of this case during its November 1999 session (see 318th Report, paras. 48-50), the Committee had stressed the importance of a spirit of dialogue and cooperation which should prevail in the resolution of industrial disputes, and had requested the Government to keep it informed of the follow-up to the recommendations concerning the reinstatement of workers and trade union delegates who had been dismissed by the CARENA enterprise following a peaceful strike.

69. In a communication dated 19 June 2001, the complainant, the Confederation of Free Trade Unions of Côte d'Ivoire "Dignité", states that an agreement was concluded on 1 June 2001, through the mediation of the Government. Under the terms of the agreement, a copy of which was attached, the dispute is definitively ended and the parties renounce all legal action relating to it, including any demands for damages. The Committee notes this information with satisfaction.

Case No. 1938 (Croatia)

70. The Committee examined this case, which concerns, inter alia, the division of trade unions assets and property, on three occasions (see 309th Report, paras. 161-185; 310th Report, paras. 15-17; 321st Report, paras. 25-27). At its May-June 2001 meeting, the Committee requested the Government to keep it informed of developments concerning this case (325th Report, para. 96).

71. In letters dated 11 July and 13 December 2000, and 30 July 2001, the Government limited itself to indicating that it did not have new information on the case.

72. The Committee notes that this case concerns property owned by trade unions before the Second World War, that negotiations have taken place since 1993 between various confederations, without success however, and that this complaint was filed more than four years ago without significant progress being made to date. Stressing that the issue of transmission of trade union assets is an extremely serious one for the viability and free functioning of trade unions and that prolonged uncertainty in this respect is not conducive to sound labour relations, the Committee requests the Government, once again, rapidly to take the initiative in determining the criteria for the division of assets and property, in consultation with the workers' organizations concerned should they be unable to reach agreement among themselves, and to fix a clear and reasonable time frame for completing the division of property. The Committee, once again, requests the Government to provide it with substantive information on developments in this respect.

Case No. 1961 (Cuba)

73. As part of the follow-up to the recommendations in this case, which was presented by the World Confederation of Labour (WCL), in a communication dated 8 December 2000 the WCL presented new specific allegations concerning detentions of journalists and members of the Single Council of Cuban Workers, obstruction of the functioning and activities of the latter organization (holding of a congress), attacks on freedom of expression, intimidation and threats. The Government replied in general terms to these allegations in a communication dated 16 September 2001.

74. The Committee requests the Government to reply specifically to each of the allegations presented by the WCL.

Case No. 1987 (El Salvador)

75. The Committee last examined this case at its June 2001 meeting (see 325th Report, paras. 22-25) and requested the Government once again to keep it informed with regard to the reform of the Labour Code in the light of the recommendations it had made in previous examinations of the case.

76. The Committee then recalled that, at its March 1999 meeting (see 313th Report, para. 117), it had observed that the legislation imposed a series of excessive formalities for the recognition of a trade union and the acquisition of legal personality that were contrary to the principle of the free establishment of trade union organizations (the requirement that the trade unions of independent institutions should be works unions), that made it difficult to set up a trade union (minimum number of 35 workers to establish a works union) or that in any case made it temporarily impossible to establish a trade union (the requirement for six months to have passed before applying to establish another trade union even if the previous one did not obtain legal personality).

77. In its communication of 5 September 2001, the Government refers to issues already dealt with in this case that are no longer in question and have been resolved, but it does not reply specifically to the issue of legislation.

78. The Committee notes the communication and once again requests the Government to keep it informed with regard to the reform of the Labour Code (requested by the Committee in its 313th Report) in the light of the recommendations it has made in previous examinations of the case.

Case No. 2085 (El Salvador)

79. The Committee examined this case at its November 2000 meeting (see 323rd Report, paras. 162-175). On that occasion the Committee requested the Government to keep it informed of any follow-up to the renewed application by FESTSA to obtain legal personality (as the request contained procedural errors). The Committee also urged the Government, as a matter of urgency, to ensure that national legislation was amended so that it recognized the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police (see 323rd Report, para. 175).

80. In a communication dated 5 September 2001, the Government explains in detail and reiterates its statements that FESTSA did not comply with the legal requirements to obtain legal personality. The Government's observations imply that FESTSA has not made further attempts to obtain legal personality.

81. The Committee takes note of this information. The Committee requests the Government to keep it informed of any initiative by FESTSA to obtain legal personality. It also, once again, requests the Government to ensure that national legislation is amended so that it recognizes the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police.

Case No. 1970 (Guatemala)

82. When the Committee examined this case at its November 2000 meeting, it requested the Government to keep it informed with regard to a series of issues relating to violence against trade union members, anti-union dismissals, the overlong duration of legal proceedings on cases of anti-union discrimination, non-compliance with legal decisions with regard to the reinstatement of trade union members who had been dismissed and the refusal to enter into collective bargaining at certain enterprises.

83. The Committee also invited the Government to accept a direct contacts mission within the framework of the follow-up to the recommendations in this case (see 323rd Report, para. 284). The Government accepted the mission in its communication of 20 February 2001 and stated that it hoped that the direct contacts mission would also investigate the questions raised by the Committee of Experts relating to the application of Conventions Nos. 87 and 98.

84. The Committee notes the submission of the report on the direct contacts mission submitted by Professor Adrián Goldin, representative of the Director-General, which discusses the previous recommendations of the Committee on this case (November 2000) and the further observations of the Government (see Part IV of the direct contacts mission report).

Report on the direct contacts mission to Guatemala (23-27 April 2001)

I. Introduction

At its meeting in November 2000, the Committee on Freedom of Association proposed to the Government of Guatemala that it accept a direct contacts mission as part of the follow-up to its recommendations in Case. No. 1970 (see the Committee's 323rd Report, para. 284).

In a communication dated 20 February 2001, the Government of Guatemala accepted the Committee's proposal for a direct contacts mission. The Minister of Labour requested that the mission also address the questions raised by the Committee of Experts on the Application of Conventions and Recommendations with regard to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), bearing in mind also the fact that these questions had been discussed several times by the Conference Committee on the Application of Standards, most recently in 1999 and 2000.

The direct contacts mission took place in Guatemala City from 23 to 27 April 2001 and was led by Professor Adrián O. Goldin, Professor of Labour Law at the San Andrés University and the University of Buenos Aires. He was accompanied by Mr. Alberto Odero, Coordinator of the Freedom of Association Branch of the ILO's International Labour Standards Department, and Mr. Christrian Ramos Veloz, a standards specialist from the San José (Costa Rica) Multidisciplinary Advisory Team.

Taking into consideration the questions addressed in Case No. 1970 and the reports of the Committee of Experts and of the Conference Committee on the Application of Standards, the mission decided to focus its activities on the following areas: (1) reminding the authorities and private individuals interviewed of the grave concerns expressed by the supervisory bodies at the acts of violence (murders, assaults and death threats) experienced by a number of trade union officials and members, and identifying the measures adopted or envisaged by the authorities with a view to rectifying that situation, including measures intended to protect trade unionists who have been threatened; (2) obtaining as much information as possible on the questions raised by the Committee on Freedom of Association with regard to Case No. 1970 and the measures taken to give effect to its recommendations; these questions refer in essence to acts of violence against trade unionists, anti-union dismissals, excessive delays in judicial proceedings in connection with cases of antiunion discrimination, failure to comply with court orders to reinstate dismissed trade unionists, and the refusal by certain enterprises to bargain collectively; (3) examining possible solutions to these problems with the authorities and the social partners, with a view to facilitating agreements in this area; and (4) emphasizing the importance of bringing legislation fully into conformity with Conventions Nos. 87 and 98.

The mission held interviews with the Vice-President of the Republic, the Minister of Labour and Social Security, and representatives of Congress, the Supreme Court and organizations of employers and workers (see the list of persons interviewed reproduced in the annex).

The mission wishes to emphasize that it received every assistance from the Government. It enjoyed the full cooperation of the Government and authorities, the central and primary trade union organizations and employers' associations. For this it wishes to express its profound gratitude.

II. Questions raised by the Committee on Freedom of Association as part of the follow-up to its recommendations in Case No. 1970

At its meeting in November 2000, the Committee made the following recommendations (see the Committee's 323rd Report, para. 284):

(a) Deploring the extreme gravity of the allegations in this case and noting with deep concern the large number of acts of violence against trade union officials and members that have been alleged, and the fact that, since its last examination of the case, two trade union officials have been murdered - including one against whom a death threat had already been alleged in the context of this case - and another two have received death threats, the Committee wishes to draw the Government's attention to the fact that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety, are fully respected and guaranteed, and that in the event of assaults on the physical or moral integrity of individuals, the Committee has considered that an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing repetition of such acts, and requests the Government to ensure that these principles are fully respected.

Allegations concerning acts of violence

Murders

(b) The Committee: (i) requests the Government to communicate without delay the outcome of the investigation conducted by the Commission for Historical Clarification into the murder of the trade unionist Mr. Luis A. Bravo; and (ii) hopes that the judicial proceedings relating to the murder of the trade unionist Mr. Pablo A. Guerra, which began in 1995, will be completed soon, and requests the Government to communicate the final outcome of those proceedings.

(c) The Committee profoundly regrets the murder of the General Secretary of the Trade Union of Pilots in Fuel and Air Transport, Mr. Oswaldo Monzón Lima, and urges the Government to take immediate measures to initiate a judicial inquiry with a view to clarifying the facts, determining responsibility, and punishing those responsible. The Committee requests the Government to keep it informed in this regard.

(d) The Committee: (1) requests the Government to keep it informed of the outcome of the judicial proceedings currently under way in relation to the murder of Mr. Robinson Manolo Morales Canales; (2) hopes that the judicial authorities will take steps to expedite the judicial proceedings in connection with the murder of Mr. Hugo Rolando Duarte Cordón, and requests the Government to keep it informed in this regard; and (3) requests the Government to initiate an immediate judicial inquiry into the murder of Mr. José Alfredo Chaón Ramirez and keep it informed in this regard.

(e) The Committee requests the Government to keep it informed of the outcome of the investigation into the murder on 22 June 1999 of Mr. Baldomero de Jesús Ramírez, General Secretary of the Trade Union of Workers of the Municipality of Santa Lucía, Cotzumalguapa, Department of Escuintla.

(f) With regard to the alleged murder of the trade unionists Cesario Chanchavac, Carlos Lijuc, José Vivas, Carlos Solórzano and Ismael Mérida, the Committee requests the Government to ensure that investigations begin soon and to keep it informed in this regard.

Death threats

(g) The Committee urges the Government to keep it informed of the outcome of the judicial investigation into alleged death threats against the official of the Trade Union of Workers of Agropecuaria Atitlán S.A. and Panamá Farm, Mr. Juan Guitérrez Garcia, and against other members of the trade union in question, for demanding payment of wages, and to provide protection to the trade union officials and members who have been threatened.

(h) With regard to the alleged death threats against the following trade union officials and members: (1) Rolando Quinteros and Mario Garza, of the United Trade Union of Taxi Drivers and Allied Workers of La Aurora International Airport; (2) José Angel Urzúa, Elmer Salguero García, Herminio Franco Hernández, Everildo Revolio Torres, Feliciano Izep Zuruy and José Domingo Guzmán; (3) the trade union officials of the Trade Union of the Santa Fe and La Palmera Farms; and (4) José Pinzón, General Secretary of the CGTG, and Rigoberto Dueñas, Deputy General Secretary of the CGTG, the Committee requests the Government to take steps to begin immediate judicial investigations and to provide protection to all the individuals who have been threatened. The Committee requests the Government to keep it informed of the final outcome of these investigations.

Raids on homes and attempted abductions

(i) The Committee requests the Government to take steps to begin an immediate investigation into the allegation concerning the raid on the home of the trade union official Mr. Francisco Ajtzoc Ajcac by the employer (El Arco Farm), and, if it is found to be true, to take steps to punish those responsible and prevent any recurrence in future. The Committee requests the Government to keep it informed in this regard.

Physical assaults

(j) The Committee requests the Government to take steps to begin an immediate investigation into the allegation concerning harassment by the Hotel Camino Real enterprise against trade union officials and the physical assault (stabbing) of the trade union's General Secretary and, if the allegations are to be found true, to take steps to punish those responsible and prevent any recurrence in the future. The Committee requests the Government to keep it informed in this regard.

Allegations concerning acts of anti-union discrimination upon which the judicial authority has not yet rendered final judgements

(k) As concerns the questions relating to the dismissal of three trade union officials on 7 August 1994 at the El Arco Farm; the dismissals on 22 May 1995 and in October 1996 of the seven founding members of the Trade Organization of the Santa Lucía La Mayor Farm; the dismissal on 28 November 1996 of 25 members of the Trade Union of the La Argentina Farm; the dismissal on 2 April 1997 of ten workers at the El Tesoro Farm for presenting a list of demands; and the dismissal on 28 October 1993 of 40 unionized workers, including all the members of the Executive Committee of the Trade Union of Santa Anita Farm, the Committee, deeply concerned at the excessive duration of the proceedings, which constitutes a denial of justice, requests the Government to ensure that the competent judicial authorities take a rapid decision to permit the safeguard of the interests of the workers concerned, if necessary by their provisional reinstatement in their posts until the courts have rendered a final decision. The Committee requests the Government to keep it informed in this respect.

Other questions

(l) With regard to the alleged impossibility of negotiating a collective agreement at the San Carlos Miramar Farm, the Committee, emphasizing that it is within its competence to determine whether the legislation and its application are in conformity with the principles of freedom of association, requests the Government to keep it informed of any decision taken by the judicial authorities with regard to this allegation.

(m) With regard to the dismissal of 15 workers at the San Rafael Panam and Ofelia Farms for presenting a list of demands and the failure to comply with the reinstatement order, the Committee requests the Government to endeavour to give effect to the judicial order to reinstate the workers dismissed five years ago, and to keep it informed in this regard.

(n) With regard to the dismissals on 23 August 1995 and 14 March 1996 of two trade unionists at the La Patria y Anexo Farm, the Committee deeply deplores the failure to comply with the judicial reinstatement order, and urges the Government to endeavour to enforce the order in question. The Committee requests the Government to keep it informed in this regard.

(o) With regard to the dismissal of trade union officials and workers at the Santa Fe and La Palmera Farms for forming a trade union and presenting a list of demands to the judicial authorities, the Committee hopes that the proceedings now under way will be concluded in the near future, and requests the Government to keep it informed of the outcome of those proceedings.

(p) The Committee invites the Government to accept a direct contacts mission within the framework of the follow-up to the recommendations in this case.

III. Legal questions raised by the Committee of Experts and by the Conference Committee on the Application of Standards

At its two most recent meetings in 1999 and 2000, the Committee of Experts made certain recommendations concerning the application by Guatemala of Conventions Nos. 87 and 98, as follows:

(Convention No. 87)

(In the first place), the Committee notes with concern the conclusions of the Committee on Freedom of Association in Case No. 1970 in which it noted with deep concern the large number of acts of violence against trade union officials and members which have been alleged, including numerous murders and death threats (see the 323rd Report of the Committee on Freedom of Association, paragraph 284(a)). In this respect, the Committee shares the opinion expressed by the Committee on Freedom of Association that freedom of association can only be exercised in conditions in which fundamental human rights, and particularly those relating to human life and personal safety are fully respected and guaranteed (see op. cit.).

The Committee recalls that for many years it has been criticizing the following provisions of the legislation:

- the strict supervision of trade union activities by the Government (section 211(a) and (b) of the Labour Code);

- the requirement of being Guatemalan to establish a provisional trade union executive committee or to be elected as a trade union officer; to be an active worker at the time of election; and that at least three members of the executive committee are able to read and write (sections 220(d) and 223(b));

- the requirement for the members of the provisional trade union executive committee to make a sworn statement that they have no criminal record and that they are active workers in the enterprise (section 220(d));

- the obligation to obtain a two-thirds majority of the workers of the enterprise or workplace (section 241(c)) and of the members of a trade union (section 222(f) and (m)) to be able to call a strike;

- the prohibition of a strike or suspension of work by agricultural workers during harvests, with a few exceptions (sections 243(a) and 249), and by workers of enterprises or services whose interruption would, in the opinion of the Government, seriously affect the national economy (sections 243(d) and 249);

- the possibility of calling on the national police to ensure continuity of work in the event of an unlawful strike (section 255) and the detention and trial of persons who try to publicly call an illegal strike or suspension of work (section 257);

- the imposition of a prison sentence ranging from one to five years for persons who carry out acts intended to paralyse or disrupt the functioning of enterprises which contribute to the economic development of the country with a view to jeopardizing national production (section 390(2) of the Penal Code);

- the imposition of compulsory arbitration without the possibility of having recourse to strike action in public services which are not essential in the strict sense of the term, in particular public transport and services related to the supply of fuel, and the prohibition of inter-union sympathy strikes (section 4(d), (e) and (g) of Decree No. 71-86, amended by Legislative Decree No. 35-96 of 27 May 1996).

The Committee notes with interest that the President of the Republic has transmitted for adoption to Congress a Bill to amend or repeal some of the above provisions (...)

The Committee expresses once again the firm hope that in the very near future legislation will be adopted which has been the subject of tripartite consultations and which includes amendments to all the provisions criticized. The Committee requests the Government to provide information in its next report on any developments in this respect. The Committee reminds the Government that the Office's technical assistance is at its disposal.

(Convention No. 98)

The Committee (also) notes the information of the Government to the effect that in the framework of technical cooperation the Office has provided it with a draft to address the comments of the Committee, and the tripartite commission concerning international labour issues is working on preparing draft reforms by consensus to put before the Congress of the Republic.

The Committee had asked the Government to amend section 2(d) of the Regulation for the procedures of negotiation, official approval and rejection of collective agreements, dated 19 May 1994, which requires a draft collective agreement to be submitted to the General Labour Inspectorate together with the certification of the fact that the General Assembly of the trade union in question voted, by a majority of two-thirds of its total membership, to authorize those serving on its executive committee to conclude, approve and endorse, subject to a referendum or definitively, the draft agreement, since it considered that the required percentage was too high and that it could well obstruct the conclusion of collective agreements. The Committee notes that the Government reports the existence of a tripartite commission to draft reforms in this regard, and asks the Government to take the measures necessary to ensure that the point in question comes before the Committee, and to keep it informed in this connection.

Equally, regarding Legislative Decree No. 35-96, which under its section 2(a) provides that bargaining in respect of collective agreements or conventions in the public sector shall take into account the legal possibilities of the general state income and expenditure budget, the Committee requested the Government to establish a mechanism whereby trade union organizations and employers are adequately consulted so as to be able to express their points of view to the financial authorities sufficiently in advance, so that these authorities may take due account of them when formulating the budget. The Committee notes that the Government indicates in its report that section 53(b) of the Labour Code provides that workers may denounce a collective agreement in force at least one month before its expiry date. This means that the denunciation and subsequent consultations, where the workers may express their point of view before the financial authorities, may take place sufficiently in advance prior to the elaboration and approval of the State Budget. The Committee notes that while the period allowed for consultation is adequate, no legislation has been introduced to ensure the consultation process. Consequently, the Committee again requests the Government to take the measures necessary to amend the legislation as indicated and inform it in its next report in this connection.

In June 2000, the Conference Committee on the Application of Standards adopted the following conclusions regarding the application by Guatemala of Convention No. 87:

The Committee took note of the written and oral information supplied by the Minister of Labour and of the discussion that took place in the Committee. The Committee recalled that the problem of non-compliance of national legislation and practice with the provisions of the Convention had been examined by the Committee of Experts and discussed in this Committee over many years, including the previous year. The Committee took note of the development announced by the Government representative, which had just occurred, that draft legislation to amend the Labour Code, the trade union legislation, the regulation on the right to strike and the Penal Code, in order to bring them into conformity with the requirements of the Convention, had been sent by the President of the Republic to Congress for adoption on 17 May 2000. The Committee indicated that it would be for the Committee of Experts to examine the compatibility of these amendments with the provisions of the Convention and trusted that these amendments would finally allow the full application of this fundamental Convention, ratified in 1952. The Committee was still concerned by the lack of concrete progress in practice. The Committee expressed its firm hope that the Government would send a detailed report to the Committee of Experts and a copy of the amendments adopted so as to allow it to make an assessment of real progress in law as well as in practice by the following year. It recalled the importance it attached to tripartite consultations with regard to the application of the principles of freedom of association.

IV. Written information submitted by the Government and other authorities in Case No. 1970

In a lengthy communication dated 26 January 2001, the Government states that implementation of the recommendations of the Committee on Freedom of Association is a priority. The Government indicates that it has communicated with the courts, the Office of the Attorney-General and the Presidential Human Rights Commission (COPREDEH) in connection with these recommendations, and explains that as a result of the 34 years of armed conflict within the country, which ended only recently, the state authorities have suffered a degree of disorganization and the necessary measures are still not being taken. One task since peace was achieved in 1996 has been to improve the legal and regulatory framework and to regenerate the justice system. This is not an excuse but rather an explanation for the institutional deficiencies that still exist, despite the fact that all the organizations are working towards the goals that have been defined and progress is being achieved in a process which should be viewed from the long-term perspective. As regards the constitutional principle of separation of powers, the Government has sought to ensure rapid processing of labour and criminal cases brought before the Committee with a view to resolving them swiftly (the Government supplies copies of the relevant communications).

Official visits have been made at the highest level with a view to speeding up efforts to deal with labour disputes and ensuring that criminal cases are investigated in accordance with the law. Ministry of Labour representatives have visited district-level public prosecution offices and courts in Zacapa, Escuintla, Santa Lucía , Cotzumalguapa and Guatemala City, in order to carry out on-site inspections, and fruitful discussions with judges and other officials dealing with cases have led to undertakings to introduce greater speed and flexibility. In that respect, the Ministry is fully aware of the efforts that are required to protect trade union organizations and workers, in accordance with the Political Constitution and the Labour Code and within the framework of law.

The Ministry of Labour has on many occasions asked the Office of the Attorney-General, through its highest authority the Prosecutor-General and Head of the Office, to collaborate as closely as possible in resolving criminal matters, which have had an impact on the world of work throughout the country. Officials of the Attorney-General's Office have responded to these requests, although not always as quickly and diligently as might have been wished. For these reasons, there are still some cases where there is insufficient information, which it is hoped will be obtained in due course. Guatemala reiterates its firm commitment to establishing the truth.

As regards the allegations regarding violence or threats against trade unionists, the Government states that complains have not been made in all cases, and attempts have therefore been made to find the trade unionists concerned or their organizations with a view to ascertaining whether or not the individuals in question are still at risk of their lives, but no replies have been received. The Government invites the ILO to solicit information on this matter from the complainants.

Subsequently, the report sets out the considerable amount of information provided by the Government on specific questions raised by the Committee, as well as information given to the mission by the Supreme Court of Justice, the Office of the Prosecutor-General and the Human Rights Procurator.

Recommendation (b) of the Committee

With regard to the death of Pablo Antonio Guerra Pérez in 1995, the judicial authorities acquitted the defendant who had been charged with culpable homicide (the defence counsel maintained that the death had been an accident). An appeal could have been lodged within ten days of the ruling but this was not done; the ruling is therefore final and the case is considered closed.

As regards the killing of Luis Armando Bravo Pérez in October 1996, death was due to wounding with a firearm. The case was classed "unsolved" because the person responsible for the crime could not be found (Mr. Bravo's companions at the time of the incident were unable to identify the culprits because it occurred at night and visibility was poor). The investigation remains open.

Recommendation (c) of the Committee

Oswaldo Monzón Lima was found dead on 22 June 2000. The case is being investigated by the Office of the Attorney-General. The Prosecutor-General has been asked to appoint a special investigator. There are three principal suspects in the case.

Recommendation (d) of the Committee

As regards the murder of Robinson Manolo Morales Canales (12 January 1999), the two culprits were sentenced by the courts to 20 and 25 years' imprisonment respectively. The sentence is final.

With regard to the killing of Hugo Rolando Duarte Cordón, two persons have been charged following investigations by the Office of the Attorney-General.

As regards the death of José Alfredo Chacón Ramirez (in January 1999), information is being gathered in connection with a complaint.

Recommendation (e) of the Committee

With regard to the death of Baldomero de Jesús Ramírez in 2000, the Office of the Attorney-General does not have sufficient evidence to establish the responsibility of any individual. The daughter of Mr. Ramírez has rejected the notion that the local mayor is the culprit. The investigation remains open and is focusing on two possibilities: that the mayor was responsible, or that the deceased was killed by his wife.

Recommendation (f) of the Committee

As regards the reported death of Cesáreo Chanchavac on 30 October 1992, there has been no investigation report by the National Police.

Homicide proceedings are under way in connection with the death of Carlos Lij Cuc (in July 1994) as a result of stabbing. Two persons have been arrested and charged in connection with the killing.

As regards the killing of José Feliciano Vivas in January 1996, the duty judge initiated the appropriate procedures on the following day.

With regard to the reported killing of Solórzano Guardado (May 1996), the justice of the peace issued a certificate of suspicious death.

As regards the killing of Ismael Mérida (July 1996), the National Police has given information regarding the personal examination carried out by the justice of the peace, without any positive results.

Recommendation (g) of the Committee

As regards the death threats made against Juan Gutiérraz García, the Minister of Labour lodged a petition against the Atitán S.A. farming enterprise, and a complaint was filed on 7 August 1998. The Human Rights Procurator has been asked to ensure that this worker is given protection, the threats cease and those responsible are punished.

Recommendation (h) of the Committee

The death threats against Rolando Quinteros and Pablo Garza are being investigated by the Office of the Attorney-General. The Human Rights Procurator has been asked to provide them with protection.

As regards the death threats against José Angel Arzúa, no complaint has been made. According to his trade union, he has retired and no longer receives death threats. The mayor responsible for anti-union acts and acts of violence was removed from office.

With regard to the death threats against Elmer Salguero García, the trade union concerned states that no complaint has been made and that he no longer receives such threats. He is now a trader and no longer works in the municipality of Zacapa. The mayor responsible for violent and anti-union actions was removed from office.

As regards the death threats against Feliciano Izep Zuruy, there has been no complaint. However, there was a commercial dispute between individuals in connection with work spaces. This was also the case with José Domingo Guzmán.

As regards the death threats against Everildo Revolario Torres, Hermicio Franco Hernández, José Pinzón and Rigoberto Dueñas, the Government has asked the Human Rights Procurator to provide them with protection.

Recommendation (i) of the Committee

As regards the raid on the home of the trade unionist Francisco Ajtzoc Ajcac, the case is before the Second Labour and Family Court of Retalhuleu Department.

Recommendation (j) of the Committee

As regards the harassment and assault against (unnamed) officials of the trade union of workers of the Camino Real Hotel, the union ceased to be operative after its officers resigned, and another trade union now exists in its place.

Recommendations (k) to (o) of the Committee

With regard to the cases concerning allegations of anti-union discrimination, the Ministry of Labour and Social Security summarizes the administrative and judicial proceedings as follows.

As regards the administrative aspects of the proceedings, the Ministry is speeding up the cases which are being brought individually or collectively by the workers, in the sense that once a complaint has been made, a summons is issued immediately so that the party against whom the complaint is made appears before the General Labour Inspectorate within three days. Previously, if the party failed to appear at that hearing, up to two further summonses would be issued. With the change in Government, the current Ministry has ruled that, when the employer is summonsed, the summons must indicate the reason for the summons, and the address must be carefully checked to ensure that there can be no excuse for failure to appear. If the employer fails to appear, punitive proceedings begin automatically in the labour courts; these involve an application by the Labour Inspectorate stating the particular violation of labour law by the employer. This is a fairly long procedure, leading ultimately to a conviction which entails a small economic penalty against the employer and thus has no real effect.

If on the other hand the party against which the complaint has been made appears before the Labour Inspectorate and the dispute is resolved, the case is closed. If the dispute is not resolved, the worker must lodge a judicial application and for that purpose the Ministry has created the Office of the Procurator for the Defence of the Worker, which makes the necessary representations free of charge in connection with the claim. The Office was set up with the aim of assisting the many workers without the means to pay a lawyer in their attempts to enforce their labour rights before the courts.

A lower court ruling will be favourable or unfavourable to one of the parties. Any party dissatisfied with a ruling may appeal to ensure that its case is examined by a higher (appeals) court. This is a procedure by which one or both parties request the higher court to review a lower court ruling unfavourable to it, and asks the higher court to set aside or modify the original ruling.

The higher court can be subject to an application for protection ("amparo") which is enshrined in article 265 of the country's Political Constitution. According to this provision, amparo proceedings can be instituted with a view to protecting persons against a threatened violation of their rights, or in order to restore rights that have already been violated. No sphere is exempt from amparo proceedings, which are applicable whenever any acts, decisions, provisions or laws imply a threat to, or a restriction or violation of, constitutional and legal rights.

Such applications are heard by a special amparo tribunal within the Supreme Court of Justice. In practice, the legal requirement, that a violation of rights be noted before any ordinary procedures or remedies (judicial or administrative) be applied, has virtually never been observed. Indeed, amparo applications have been incorrectly lodged before the Constitutional Court, which is the court of appeal for all amparo cases and is competent to examine direct amparo applications against the Supreme Court, most of which seek a "review" of decisions handed down by the ordinary courts.

There are thus four levels of judicial authority, which means that the procedure for dealing with labour disputes is slow and workers often abandon their claims in despair, frequently preferring to renounce the compensation to which they are entitled or to accept far less than they could legally claim. This situation is illustrated by the cases of anti-union discrimination referred to by the Committee.

Dismissals at the El Arco Farm. The authorities have supplied information on a collective dispute in 1997, although the complaint concerns the dismissal of three trade union leaders in August 1994. It would be helpful if the Government would send new information.

Dismissals at Santa Lucía la Mayor Farm. The judicial authorities ordered the reinstatement of the workers and the order has been put into effect.

Dismissals at La Argentina Farm. The first court order for reinstatement was overruled. The judicial authority ordered that financial compensation be paid to the workers in question.

Dismissals at El Tesoro Farm. The Constitutional Court upheld the previous rulings ordering reinstatement, thereby closing the case.

Dismissals at Santa Anita Farm. On 1 February 2000, the dismissed workers accepted an out-of-court financial settlement with the Farm and abandoned their claim.

Impossibility of negotiating a collective agreement at the San Carlos Miramar Farm. The Government has not provided new information on any court rulings in this matter.

Dismissals at San Rafael Panam Farm. The court lifted the injunctions and provisional remedies (that is, the protection given to the trade unionists) and that decision was upheld on appeal. The proceedings have ended.

Dismissals at Ofelia Farm. The parties did not appear before the court after the plaintiff requested that the direct remedies for dealing with the reinstatement applications be exhausted. The case is still pending.

Dismissals at La Patria Farm in August 1995 and March 1996. Two separate cases are pending. In the first (No. 102-97), a conciliation tribunal was convened but only the workers appeared. They can request a new hearing for both parties but have not done so. In the second case (No. 108-97), the judicial authority has lifted the injunctions and provisional remedies (thus terminating the trade union protection); this was upheld on appeal on 9 November 1996, and the case was filed.

Dismissals at Santa Fe and La Palmera Farms. This case has already been considered by an appeal court and the company lodged a request for protection (amparo) before the Constitutional Court, which has yet to give a ruling.

The Human Rights Procurator has noted violations of labour law and freedom of association at some of these farms (El Tesoro, Ofelia, La Patria, El Arco, San Rafael Panam and La Argentina).

V. Interviews conducted by the mission

Before entering into the substance of this section, it should be noted that, during the mission, the Congress of the Republic adopted a reform of the Labour Code (Legislative Decree No. 13-2001), which gives effect to some, although not all, of the recommendations of the Committee of Experts with regard to the application of Convention No. 87. Seventeen days after the mission's departure, Congress adopted another partial reform in Legislative Decree No. 18-2001. These reforms are considered below.

Interview with the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF)

The employers' representatives told the mission that they deplored all forms of violence, and that the situation in that respect had improved enormously since the signing of the peace agreements in 1996. As regards the other questions raised in Case No. 1970 before the Freedom of Association Committee (which refer to incidents that have taken place over a number of years), they stated that reinforcing and improving the efficiency of the justice system and reforming the procedural rules were envisaged in the peace agreements. It was a matter of priority for the employers that justice should be administered through procedures that dealt with labour issues and other areas of law in a way that was appropriate, effective, swift and up to date. In that regard, the CACIF had undertaken a number of different initiatives to improve the situation. It had attempted to promote alternative systems for resolving disputes (agreements between the parties themselves) in which the parties could freely participate if they so wished. It had requested that new tribunals be established and greater resources be allocated to the justice system. In 1997, it had worked with the trade unions on a draft labour procedural code that was almost complete. In the recent agreement with the trade unions concerning reforms to the Labour Code, it had proposed a more effective system of dealing with infractions of the Code (involving the justices of the peace) and increased fines. With regard to the latter, although the employers and the trade unions had reached an agreement on the text of an agreement, the trade unions had not wished to include this in the reform package. It was therefore unfair for some unions to criticize the employers for exploiting a situation of impunity, since the employers were more concerned than anyone else to establish a sound system for the administration of justice.

The draft labour procedural code negotiated between employers and the unions in 1997 had failed because the current Minister of Labour, a former trade union official, had a very individual view of tripartism: he had unilaterally presented the social partners with a new draft labour procedural code, while the CACIF and the trade unions had more or less agreed on their own in 1997.

In the employers' view, this attitude on the part of the Minister was also reflected in the successive partial reforms of the Labour Code undertaken with a view to bringing its provisions into line with Conventions Nos. 87 and 98. For example, he did not consult the CACIF or send it a copy of the draft reforms presented to Congress and to the International Labour Conference in 2000, in order to circumvent the need to achieve consensus. According to records of the tripartite commission, the trade unions "would not endorse an initiative (the preliminary draft) that had not been agreed by the commission". Many of the provisions proposed by the Minister were also, in the employers' view, unconstitutional.

At the same time, instead of encouraging conciliation in disputes, the Minister of Labour encouraged the use of the courts (thus prolonging the disputes), adopted biased positions in favour of the trade unions, and unjustly and incorrectly accused the CACIF of organizing demonstrations.

As regards social dialogue, the employers have emphasized the contribution of the 1995 direct contacts mission headed by Professor Enrique Marín, and the subsequent creation of the tripartite commission. Since then, progress had been made in social dialogue and in gradually overcoming the mistrust which had resulted from the armed conflict and political "labelling". In that regard, the employers drew attention to the 1998 agreement, which had been implemented through various legal reforms, and the Legislative Decree of 25 April 2001, which drew together a number of far-reaching historic agreements between the central trade union organizations and the CACIF and addressed many of the problems highlighted by the Committee of Experts. They emphasized how regrettable it was that the Government had wanted, without the approval of Congress, to extend other reforms on which there was no agreement. These included the reform concerning strikes by agricultural workers during harvests, which were potentially very damaging to agricultural enterprises, or the unconstitutional role which it sought to give to the Labour Inspectorate in imposing fines. According to some press releases that appeared after the mission's visit, the CACIF protested vigorously at the unilateral reforms imposed under the second Labour Code reform of 14 May 2001.

The employers' commitment to tripartism and social dialogue had been made abundantly clear during the past seven or eight years, and the employers were prepared to go on addressing difficult topics. It was important to establish terms of reference and to ensure that future reforms of the Labour Code and procedural rules would be implemented with competitiveness and job creation in mind. Other issues had also been raised in bipartite talks on the recent reform, and progress was possible.

The CACIF stated that it was prepared to reach agreements within the framework of the tripartite commission on a number of questions raised by the mission (details are given below). Lastly, it appreciated the ILO's role in the process of social dialogue and emphasized the importance of its continuing role in that process.

Interviews with the trade unions

In the view of the trade union organizations, the armed conflict had left a heavy legacy of mistrust between the social partners. Although this was now being gradually overcome, there were still employers for whom trade unions were synonymous with "guerrillas" and "communists". The number of killings and other acts of violence against trade unionists had fallen (one trade unionist suggested that there had been 12 killings since 1992), but death threats were still very frequent and the Office of the Attorney-General did not pay enough attention to such acts of violence. There were currently cases of attempted lynching of trade unionists (the mission learned directly of one such attempt and intervened with the authorities to prevent it), and intimidation also occurred in other forms. All the central trade union organizations agreed that, although legislation provided protection against acts of anti-union discrimination, in practice that protection was ineffective because of deficiencies in the justice system and the consistently anti-union stance of the employers, who stepped in immediately to crush any attempt to form trade unions or promote collective agreements. As a result of this, the central trade union organizations thought twice before promoting a union for fear of reprisals which had potentially serious consequences for workers at a time of high unemployment. Anti-union discrimination took different forms: dismissals of workers attempting to set up unions, bargain collectively or carry out trade union actions; circulation of blacklists of union leaders and members among companies; practices aimed at making workers leave their unions; attempted lynching of workers whose reinstatement had been ordered by a court; temporary plant closures or changes of name for anti-union ends; and the use by companies of contractors employing no more than 15 workers in order to prevent the formation of trade unions (the minimum number of workers required to form a trade union is 20). At the same time, employer-dominated parallel trade unions were being created, and non-confrontational "solidarismo" was being used against traditional trade unionism. The problems were most acute in the assembly plants and in the rural sector. According to one central trade union organization, in the coffee sector, which employed 57,000 workers, there were only eight unions. As regards the right to strike, the law made the exercise of that right too difficult and in recent years there had been no cases of a strike being declared legal. In the municipalities there were also dismissals of trade unionists who lodged complaints (the mission heard direct testimony of one trade union delegation). In addition, the Labour Code did not provide for the establishment of industry trade unions.

As regards the deficiencies in the justice system, the Labour Inspectorate (at the time of the interviews) had no authority to apply sanctions, the sanctions that did exist for contraventions of the Labour Code were outdated and ridiculous (maximum fines of 5,000 quetzales) and even then were not applied by the courts. Orders to reinstate workers were not implemented and fines for non-compliance were laughable (between 250 and 5,000 quetzales). Proceedings were inordinately long and might have to pass through four judicial levels of review. Many judges were close to those with economic power and some were corrupt. Complaints against the courts brought before the supervisory authority led nowhere. In the view of the central union organizations, there was no political will to end the situation of impunity and reform the justice system, and successive governments had deferred to the interests of political and economic minorities. A number of central trade union organizations have stated that the current Minister of Labour had made efforts at reform but they had failed because they were mired in the existing structures and in the system of economic minorities. One trade union organization sharply criticized the Minister of Labour and accused him of anti-union discrimination. Successive governments and the authorities in general had, in the view of the trade union organizations, lacked the political will to solve the problems.

The central trade union organizations regard the new dialogue with the employers as an encouraging sign and are eager to achieve progress and conclude agreements. They felt disappointed and let down by the fact that, in the first reform of the Labour Code, which was adopted during the mission, Congress had legislated only on questions on which agreement had been reached with the CACIF, but not on others which had been agreed with the Minister of Labour. According to the press, they also complained of the very limited scope of the second partial reform of the Labour Code which was adopted after the mission left

The trade union organizations stated their readiness to reach agreements within the framework of the tripartite commission on questions raised by the mission, of which further detail is given in the rest of this report.

Interview with Congressional representatives

The mission had a working breakfast with Congressional representatives from two different parties, just hours before the adoption of the first partial reform of the Labour Code (25 April 2001).

During the meeting, which took place in the Congress building, the mission explained the purpose of its visit and emphasized the importance of fulfilling all the requirements set out by the Committee of Experts with regard to freedom of association. The mission also answered various questions of a technical nature on points raised by the Committee of Experts and emphasized the need to strengthen social dialogue.

Interview with the Vice-President of the Republic

The Vice-President of the Republic, who was standing in for the President during the mission's visit, indicated that by comparison with the country's past, the period of violence between trade unions and employers was now over and that there had been a considerable reduction in the incidence of threats. As regards the reform of the Labour Code which had just been adopted by Congress (the first reform of 25 April 2001), the President and senior members of the Government had wanted more substantial changes, but unfortunately Congress would not go beyond matters on which agreement had been reached by the central trade union organizations and the CACIF. Clearly, the conditions needed to reform certain provisions regarding the right to strike were not in place but could be reviewed. The Government wanted greater change and wished to equalize the respective power of the employers and workers and avoid favouring one side or the other. To do so, it was important to avoid the "tripartidism" which, in his view, was maintained by the employers only as long as was absolutely necessary to achieve consensus on a desired labour reform. The Executive branch had a duty to guarantee justice and social coexistence and, if the social partners were unable to reach conclusions or take decisions, the State had a duty to act. The trade unions for their part did not always support the Government's initiatives aimed at helping the workers and promoting freedom of association, and they needed, with the ILO's help, to acquire greater clarity in their ideas, as well as greater strength and structure.

The Vice-President said that he supported the administration of the Minster of Labour and endorsed the mission's initiative to form a special unit within the Prosecutor-General's Office to investigate offences against trade unionists and employers. Referring to the peace agreements, he added that the delays in legal proceedings needed to be corrected.

As regards the criminal cases referred to by the Committee on Freedom of Association, he recalled that the burden of proof was on the prosecution (not the Government), and that there were cases of killings in which there was no material or eyewitness evidence, only suspicions as to the identity of the culprit (however important these might be). As regards the death threats, these were sometimes made by telephone and could be very difficult to trace.

The Executive was considering the complaints made to the ILO and had brought them to the attention of the courts and prosecution service. However, it could not interfere with the work of those authorities.

Interview with the Minister of Labour

The Minister of Labour emphasized the Government's willingness to honour the obligations arising from ratification of Conventions Nos. 87 and 98. He shared the view of the Vice-President regarding the "tripartidism" demanded by the employers, which amounted to a right of veto on all labour issues. Nevertheless, progress had been made in social dialogue, although more needed to be done. Finding solutions to the problems in the justice system (delays, non-implementation of rulings, obsolete levels of fines, etc.) that had been reported to the ILO was an integral part of the commitments under the peace agreements, and the authorities would have to undertake the necessary reforms. In particular, sanctions for failure to implement court rulings needed to be strengthened, and the Minister referred to the new draft labour procedural code which had been submitted to the social partners and aimed to bring about greater efficiency and speed in labour court procedures. He also supported the proposal to create a special unit within the prosecution service to investigate offences against trade unionists and employers, as well as efforts to strengthen social dialogue. He endorsed the mission's proposals regarding topics within its mandate for discussion by the tripartite commission (more details of these are given below).

Lastly, he emphasized that the reforms of the Labour Code which the Executive had proposed to Congress went beyond Legislative Decree No. 13-2001 (adopted on 25 April 2001) with regard to the implementation of the recommendations of the Committee of Experts concerning strikes. They also brought up to date the penalties applicable in cases of violation of labour laws and gave the Labour Inspectorate the power to impose penalties, in addition to other improvements (recognition of industry trade unions, etc.).

Interview at the Supreme Court of Justice

The Supreme Court judges provided information on the status and outcome of various criminal and labour court cases relating to Case No. 1970. They drew attention to the efforts that had been made recently through seminars and other activities aimed at formulating coherent criteria on the interpretation of laws, in the light of the complaints made by the trade unions through MINUGUA. A coordinating committee on labour jurisprudence had also been established. This body consisted of senior judges and its purpose was to establish guidelines which should ensure consistency in court rulings. Within one month, the Labour Courts' Gazette would also reappear and would gather together relevant court rulings and judgements on labour issues.

As regards the failure to implement reinstatement orders, this constituted the offence of "failure to carry out orders issued by a lawful authority" which, according to one judge, could give rise to sanctions under a new procedure allowing the adoption of coercive measures to force an employer to reinstate a worker. Nevertheless, it was obvious that the available fines were not severe. According to the same judge, a prison sentence could be substituted for the fine in the case of a repeat offence.

The execution of reinstatement orders was less effective than it should be, and the Office of the Attorney-General did not attach sufficient importance to the investigation of cases of failure to implement court orders. One judge emphasized that a sanction such as plant closure would undoubtedly be effective.

However, the judges indicated that cases of non-reinstatement following a judicial order to that effect were infrequent.

One judge pointed out that the allegations made in Case No. 1970 dated from before the present peace (1996), and that the situation, while far from perfect, had improved since then, in terms both of criminal activities and labour relations.

Labour court proceedings were subject to serious delays, in particular because of the abuse of applications for annulment or of objections that were lodged (often on unreasonable grounds). The Supreme Court could formulate draft legislation, and, probably in October 2001, once all the necessary consultations with the judicial community had taken place, a draft general procedural code would be put forward. This had been designed to ensure that judicial proceedings would be confined to no more than two instances; possible ways of delaying proceedings would be restricted and proceedings would be speeded up as far as possible, by making conciliation centres available to the parties to a dispute and making it a condition of any judicial examination that those centres be used. This procedure would apply to civil and criminal cases and to (individual) labour disputes.

Interview with representatives of the Office of the Prosecutor-General

The Prosecutor-General was abroad, and his representatives said that he had handed over to his private secretary the cases presented to the ILO to ensure that they received the maximum attention. The mission was then given written information on the cases before the Committee on Freedom of Association. The representatives said that the mission's proposal that a special unit be set up within the prosecution service to deal with offences against trade unionists and employers (killings, assaults, death threats, etc.) was a valuable one (other similar units existed), since it would enable a special prosecutor to coordinate and direct the activities of the district courts, consolidate information on all cases, and benefit from the advantages of specialization. It was for the Prosecutor-General to take the final decision, and the mission's proposal would be submitted to him. A protection programme already existed for witnesses and others involved in criminal trials.

The justice system suffered from a number of serious problems (a heavy workload, fear experienced by witnesses in a violent society, corruption, etc.).

As regards the offences of failure to implement judicial orders (section 414 of the Penal Code), the Office of the Prosecutor-General could not deal with such offences, since the sanction involved was a fine of between 250 and 5,000 quetzales and the procedure similar to the misdemeanours procedure. On the other hand, if the people responsible for disregarding judicial orders were public officials (including mayors), the Office could prosecute them before a lower criminal court, but such cases had first to go through a preliminary hearing (removal of immunity or "desafuero") before the officials could be tried. Since failure to obtain removal of immunity resulted in what was to all intents and purposes a final ruling which precluded any further action, lack of evidence normally meant that proceedings were delayed until such time as more evidence could be gathered.

In cases of death threats, the Office of the Prosecutor-General took action but also involved the National Police. Problems of coordination with the National Police could arise when, as sometimes happened, the Police claimed the right to direct an investigation.

Proceedings were closed only when a ruling was handed down or a case dismissed; the fact that a given case was "filed" did not mean that it was closed.

In a communication of May 2001, the Office of the Procurator-General informed the mission that it had commissioned a study with a view to setting up a special unit (investigation unit) which would deal with offences against organizations and their members, and that it planned to get the unit operational as quickly as possible.

Interview with the Human Rights Procurator

The Human Rights Procurator said that violations of freedom of association were very commonplace, and there was a high level of impunity in many labour relations and criminal cases. This was a result of the lengthy proceedings, the failure to implement court reinstatement orders, corruption, and other such factors. Death threats were commonplace and affected all sections of society, including judges, witnesses, public officials and trade unionists. One of the main causes of the deficiencies in the justice system was the method of appointing divisional and court judges. The Labour Inspectorate did not function well in cases of anti-union discrimination. The Human Rights Procurator undertook mediation activities and investigations with a view to formulating a non-binding "conscience" settlement which was published and followed up. However, the Human Rights Procurator ceased to deal with a case once it came before the courts. The Procurator supplied some written information on questions raised in connection with Case No. 1970.

Interview with senior officials of the United Nations Verification Mission in Guatemala (MINUGUA)

The direct contacts mission wishes to emphasize that MINUGUA is fulfilling its commitments with due regard to the provisions of the ILO Conventions and the recommendations of the Committee of Experts and the Committee on Freedom of Association, which it cites frequently in its reports.

The mission owes MINUGUA a great deal of valuable information on compliance with those provisions of the peace agreements that relate to labour and trade union rights. One point worth mentioning, which rarely came up in other interviews, is the lack of collective agreements (only 161 between 1995 and 1999) and the limited scope of the agreements that do exist (negotiation is basically conducted on a company basis).

The documentation received shows that MINUGUA is concerned by many of the issues raised by the Committee of Experts and the Committee on Freedom of Association (slowness of legal proceedings, legal restrictions, etc.), and that it is fully committed to achieving progress in these areas.

The mission would like to draw attention to the very valuable help that it received from MINUGUA officials, especially Mr. Ricardo Changala and Ms. María Castells.

VI. The partial reform of the Labour Code adopted by the Congress of the Republic during the mission's visit and the subsequent partial reform

As indicated earlier, the first partial reform (Legislative Decree No. 13-2001) concerns trade union matters and was adopted on 25 April 2001, during the mission's visit. Congress had been asked to consider a draft text by the Executive, on the one hand, and an agreement between the central trade union organizations and the CACIF, on the other. The Congressional Decree set aside the Executive's draft text and adopted the provisions of the bipartite agreement, with the sole exception of one provision amending section 257 of the Labour Code (detention and trial of persons attempting to incite others to carry out illegal strikes or stoppages).

The mission had formulated observations on the Executive's draft text and on the agreement, recalling the observations and principles of the Committee of Experts. These observations were transmitted to the Minister of Labour who in turn brought them to the attention of Congress.

It should be noted that before the adoption of the first reform and after the first draft text submitted by the Executive (May 2000), there were successive drafts which either caused frustration among the trade unions or raised their hopes, while the CACIF maintained that it had not been consulted and the Minister of Labour claimed that the employers had abandoned the tripartite commission discussions on these issues. Whatever the case may have been, the trade unions were hoping that Congress would go beyond the issues on which agreement had been reached with the CACIF, the agreement in question having been reached when Congress suspended its discussions and submitted these legislative issues to the social partners for comment in April 2001. The Congressional representatives expressed a willingness, where necessary, to widen the reforms along the lines suggested by the ILO.

Congressional Legislative Decree No. 13-2001, which introduces the first reform, is dated 25 April 2001. Legislative Decree No. 18-2001 introduced the second partial reform of the Labour Code and is dated 14 May 2001, i.e. 17 days after the mission departed. The legislative reform process was influenced by the demand of the United States that Guatemala comply with ILO standards as a condition for allowing the country to remain within the General System of Preferences. In a communication to the ILO dated 2 May 2001, before the second partial reform of the Labour Code, the Minister of Labour informed the ILO that the Executive intended to act on the ILO's request that it bring the Labour Code into line with Conventions Nos. 87 and 98 as far as the Constitution would allow and as far as it did not create conditions likely to impede the country's development in the social and economic conditions of today. The Minister requested as a matter of urgency that an answer be given as to whether Legislative Decree No. 13-2001 was consistent with the ILO's observations, and, if it were not, for an indication as to which provisions needed to be amended to produce wording that would be satisfactory for the ILO and for the country. The ILO replied on 7 May 2001.

Below are set out the points in which the reforms give effect to the recommendations of the Committee of Experts and those points in which they do not.

(a) Provisions which give effect or imply greater adherence to the recommendations of the Committee of Experts

- the strict supervision of trade unions by the Executive authorities is abolished (former section 211 of the Labour Code);

- the requirement that a prospective member of a trade union executive body have no criminal record and be able to read and write is abolished (former sections 220 and 223);

- the requirement to obtain a two-thirds majority of the union membership for a strike to be called (former section 222) within a union has been abolished; this has been replaced with a provision that for a strike to be approved, one-half of the quorum of the respective assembly plus one member must vote in favour;

- the requirement that at least two-thirds of workers at an enterprise must vote in favour for strike action to be legal is abolished (former section 241); instead, it is enough to obtain one-half of the votes of the workers at the enterprise plus one vote, not including workers in positions of management trust or those representing the employer (the new rule is certainly an improvement over the previous one, but the Committee of Experts will have to decide as to its compatibility with the principles of freedom of association);

- the prohibition of strikes or stoppages during harvests under former section 243(a) and strikes by workers in enterprises or services whose interruption would in the Government's view seriously affect the national economy (section 243) is repealed, so that suspension of a strike by the President is now possible only if it seriously affects public services that are essential to the country (new final paragraph of section 243). The Committee of Experts will have to rule on the compatibility of this provision with the principles of freedom of association;

- the provision allowing the arrest and trial of persons publicly inciting others to illegal strikes or stoppages is repealed (former section 257);

- in the case of illegal strikes or stoppages, there is no longer an obligation for courts to order the National Police to ensure the continuity of work (former section 255); in its place, there is now a provision according to which judges "may" order and implement precautionary measures to guarantee continuity of work and the right to work for persons wishing to continue working;

- also repealed (implicitly, by virtue of the new section 222 of the Labour Code) is the requirement for a two-thirds majority of a trade union's members for the signing of a draft collective agreement, which was part of section 2(d) of the Regulations of 19 May 1994 concerning collective agreements.

(b) Provisions to which the Committee of Experts objected and which are not covered, or not obviously covered, by the reforms

- the requirement to be of Guatemalan origin (this requirement is derived from the Constitution) and to be actively employed by a company in order to be elected to trade union office (sections 220 and 223 of the Code);

- the sanction of one to five years' imprisonment for persons carrying out acts aimed at paralysing or disrupting enterprises that contribute to the country's economic development with a view to harming national production (section 390(2) of the Labour Code). The Committee of Experts will have to determine whether, with the repeal of section 257 (regarding the arrest and prosecution of persons calling publicly for an illegal strike), section 390(2) still poses problems in terms of compatibility with the principles of freedom of association;

- the requirement for compulsory arbitration without the possibility of recourse to strike action in the public services which are not essential stricto sensu, such as the public transport services and services related to fuel, and the prohibition of trade union solidarity strikes (section 4, clauses (d), (e) and (g), of Decree No. 71-86, as amended by Legislative Decree No. 35-96 of 27 May 1996). The Committee of Experts will have to determine whether any of these restrictions continue to pose problems of compatibility with the principles of freedom of association, in view of the new wording of section 243, with its definition of essential services where a minimum service may be required; this is currently limited to situations of danger to life or to the safety of all or part of the population;

- the absence of a consultation procedure (within the framework of the collective bargaining procedure in the public sector, governed by Legislative Decree No. 35-96) to allow the trade unions to express their views to the financial authorities so that the latter could take account of those views when drawing up the budget.

On the other hand, Legislative Decree No. 18-2001 directly or indirectly answers some of the questions raised by the Committee on Freedom of Association (excessive delays in court proceedings in cases of anti-union discrimination, final judicial rulings for the reinstatement of dismissed workers and refusal to bargain collectively in some companies), in the sense that it considerably strengthens the obligation to reinstate workers dismissed for anti-union reasons, as well as the sanctions in cases of contraventions of the Labour Code (based on a variable multiple of the minimum wage). It also obliges the offender to remedy the irregularity, imposes further sanctions in cases of repeat offences, and enables the General Labour Inspectorate to dictate settlements and impose sanctions. The Decree also provides that the court must appoint one of the employees to act as executor and ensure that dismissed workers are actually reinstated in cases where a trade union is being established, or in cases of collective disputes in which legal immunity has not been respected.

The various drafts of a labour procedural code

In the section concerning the interviews conducted by the mission, there are references to three drafts or preliminary drafts of a labour procedural code which are intended to solve the problem of judicial delays. One was produced by the CACIF and the trade unions in 1997, and was on the point of being finalized; another more recent one was produced by the Ministry of Labour; and a third was being finalized by the Supreme Court and was due to be submitted in the near future as a bill which, if approved, would become a General Procedural Code applicable to civil, labour (individual disputes) and criminal cases.

The mission delivered a communication from the ILO's International Labour Standards Department with observations on the draft procedural code produced by the Ministry of Labour from the perspective of the application of Conventions Nos. 87 and 98.

As indicated earlier, the mission helped to guide discussions on the efficacy of the procedures. The public authorities and the social partners were fully aware of the deficiencies in the workings of the justice system, the undesirable consequences of lengthy proceedings, and the obsolete fines imposed under the Penal Code (section 414) for failure to comply with judicial orders. It is likely that the social partners and the public authorities will discuss the most appropriate procedural model.

VII. Conclusions and results

The mandate of the mission

As indicated previously, the mission's objective was:

(a) to follow up the recommendations of the Committee on Freedom of Association regarding matters relating to Case No. 1970 (killings of trade unionists, excessive delays in proceedings in connection with cases of anti-union discrimination, non-compliance with judicial orders arising from those cases, etc.); and

(b) to collaborate in efforts to bring Guatemalan legislation into line with Conventions Nos. 87 and 98 so as to meet the criticisms voiced by the Committee of Experts.

It should be noted, first, that the mission was able to carry out all its planned activities in an atmosphere of consideration and respect from the government authorities, legislature, judiciary and the Office of the Attorney-General, as well as from employers' and workers' organizations. It was important in that context to ensure that the questions raised by the Committee on Freedom of Association and the Committee of Experts were still relevant. The concern expressed by the various authorities to respond to the points raised by the ILO's supervisory bodies only confirms the importance of the latter in promoting the principles and values of freedom of association.

Regarding the questions raised in Case No. 1970

Brief résumé of the problems

In accordance with its mandate, the mission in all its interviews with government officials, the judiciary, legislative authorities and the Office of the Attorney-General, drew attention to the concerns of the Committee on Freedom of Association at the acts of violence and discrimination suffered by trade unions officials, as well as the situations of impunity, delays or ineffective procedures for dealing with anti-union behaviour. As illustrated in sections IV and V of this report, the Government representatives and the other authorities interviewed explained various aspects of the situation in Guatemala which have a bearing on these issues and reported on the efforts made to resolve the problems. They provided the mission with information on all the pending questions raised by the Committee on Freedom of Association in Case No. 1970.

Regarding the points raised by the Committee, many of our interlocutors referred to the after-effects of a history of violence, confrontation and mistrust. There is no doubt that the peace agreements marked a turning point and have set Guatemala on the path towards a gradual recovery of basic human rights, including the right to life and security of the person. This should not be underestimated. Nevertheless, the after-effects in question have not yet been overcome and are still evident in the form of threats and acts of anti-union discrimination (which in the opinion of the trade unionists are frequent), and in the nature of labour relations, especially in terms of mutual rejection and prejudices.

This "culture", which has grown out of the ashes of past violence, is also reflected in the institutional machinery of legal process and reparation: judges, witnesses, labour inspectors, and parties to disputes often find themselves faced with threats which create an insuperable obstacle to the administration of justice and the exercise of police authority.

There are also other factors which contribute to the institutional ineffectiveness, and these relate to the competent bodies, and to the procedures and methods of implementation. In investigations of offences, lack of resources, poor coordination with the civil police, duplication of authorities and disputes about official powers are among the problems faced. When it comes to violations of the principles of freedom of association and labour protection standards, exacerbating factors include the inadequacy of the courts, unsatisfactory methods of appointing and supervising judges, the tendency for existing procedures to be abused (which is one factor explaining the delays in proceedings), the absence of adequate sanctions in cases of failure to comply with court orders, the impotence of the penal system to deal with violations of labour laws (excessive length of procedures, etc.).

Initiatives and results

A new process of social dialogue

It is clear that in this situation of mistrust between the parties, a sustained exercise in social dialogue - quite apart from any possible specific goals of that process - becomes an end in itself. It serves to promote mutual knowledge and recognition, and contributes to the goal of conciliation and thereby to attaining the objectives of the peace agreements.

With this in mind, the mission proposed to the central employers' organization, the central trade union organizations and the Government, that a new process of dialogue be established with the assistance of the ILO, this time geared to identifying options for remedying the severe lack of institutional effectiveness evident from the questions raised before the Committee on Freedom of Association. Aspects of this include: reforming procedures for settling individual and collective labour disputes (following the proposal to speed up procedures and ensure compliance with existing laws and court rulings); development of alternative techniques and mechanisms for prevention and settlement by the parties themselves of disputes; and tripartite review of alleged acts of violence affecting trade unionists and employers with a view to collaborating in efforts to bring down the incidence of such acts, ensure they are properly investigated and protect the victims. The employers' associations and trade unions, as well as the Ministry of Labour, have expressed their readiness to participate in this process of social dialogue; the ILO, through the San José Multidisciplinary Advisory Team and its social dialogue programmes, should play its part in setting up the process, promoting its development and maintaining the commitment of the parties. The first meeting will probably take place in July with a view to setting up the necessary committees.

A sign of the high regard in which the ILO is held in Guatemala is the fact that, in including the question of reforming labour law procedures in the future social dialogue agenda, the parties agreed, at the mission's urging, to set aside certain a priori objections (particularly by the employers and the Ministry of Labour) to various reforms on which there had supposedly been no consultation. Also in preparation is a proposed procedural reform drafted by the Supreme Court with a view to consolidating civil, commercial and labour procedures. One of the first commitments at the dialogue table must be a commitment to building consensus on the procedural model considered to be most effective in dealing with labour conflicts.

Investigations of offences and other questions relating to the penal system

The mission, with the Vice-President, the Minister of Labour and officials of the Prosecutor-General's Office, considered the need for measures to improve the investigation of offences against trade unionists. These talks led to a certain degree of convergence in the sense that the creation of a special unit dedicated to this task within the Prosecutor-General's Office would allow officials to specialize and centralize information, and could lead to better results. The mission accordingly recommended that this option be considered. On 14 June 2001, the Government reported that the Special Investigation Unit (Fiscalía Especial) had begun work on 8 June. It goes without saying that, as indicated previously, its effectiveness will depend on the provision of adequate resources, proper subordination of the civil police and avoidance of any duplication of effort.

As regards the recurrent failure to implement court rulings, it seems obvious that structural factors of the kind referred to previously are still at work. We referred to these as "after-effects" of historical tendencies, not yet fully overcome, towards violent forms of behaviour and the consequent erosion of the rule of law. Other factors have also contributed to the problem. These include the method of appointing judges and the inadequate machinery for monitoring their activities. A number of those we spoke to drew attention to the virtual absence of any real penalties for non-compliance with judicial rulings, the only available penalty being outdated fines under section 414 of the Penal Code. The minor status of such offences under the Penal Code is shown by the fact that they are dealt with by justices of the peace, rather than by criminal court judges. (Endnote1) In the light of the conclusions of the Committee on Freedom of Association, the mission suggested to the Vice-President that it would be appropriate to set about amending the relevant provisions determining the penalty and the competent authority, in such a way as to increase their deterrent effect and punish with sufficient vigour the failure to respect judicial rulings which so dangerously undermines the credibility of the justice system.

The mission found that everyone to whom it spoke was agreed on the need to strengthen the system of recording and punishing contraventions of labour legislation which is hampered by the excessive length of judicial proceedings and the inadequacy of existing penalties. There was, however, disagreement as to the right way of rectifying this deficiency. This question had already been dealt with in the bills under discussion during the mission's visit, and corresponding provisions were approved in the legal reforms adopted after the mission left (Legislative Decree No. 18-2001 of 14 May 2001). In that text, the power to impose sanctions - which had hitherto been the prerogative of the labour tribunals - has been given to the Labour Inspectorate (the employers regard this as unconstitutional), while penalties have been updated by increasing them and setting them in relation to the minimum wage.

Towards strengthening the labour relations system

In many of the interviews, it became obvious that there was a need to strengthen the labour relations system. To do this, the mission considers that it would be very helpful to carry out a diagnostic survey of its status, its overall context, the factors that are preventing it from working properly, and possible ways of overcoming them. The ILO could provide technical assistance for such a study, and the conclusions could be discussed as part of the process of social dialogue.

The reservations expressed by the Committee of Experts

As indicated in the opening lines of this report, the Ministry of Labour had requested that the mission, the original purpose of which was to follow up the recommendations of the Committee on Freedom of Association in Case No. 1970, also address the questions raised by the Committee of Experts. During its visit, the mission stressed the importance of bringing legislation fully into conformity with Conventions Nos. 87 and 98, and made observations on the bills and agreements under discussion at that time in the light of the reservations expressed by that supervisory body and of the principles embodied in Conventions Nos. 87 and 98. Those observations were passed on to the Minister of Labour who in turn brought them to the attention of Congress. The mission also had meetings with the Congressional authorities, and emphasized in those meetings the need to find solutions that would answer the reservations of the Committee of Experts.

The content and scope of the legislative reforms are described in section VI of this report. As indicated there, the Legislative Decree adopted during the mission's visit and the one adopted 17 days after its departure constitute a significant step forward in the application of Conventions Nos. 87 and 98, in that they repeal or amend many of the provisions criticized by the Committee of Experts (and have a more or less positive impact with regard to the questions raised by the Committee on Freedom of Association), although such legislative decrees have been severely criticized by both the employers' and workers' organizations, albeit for different reasons.

I would not wish to conclude this report without expressing my profound personal gratitude to my colleagues during the mission. After the daunting work of preparing for the mission, the experience and wise counsel of Mr. Alberto Odero de Dios were crucial to its success. Mr. Christian Ramos Veloz, based in San José, was jointly responsible for the preparatory work. His extensive knowledge, cooperative spirit and skilful participation were of great value to the team in its deliberations.

Buenos Aires, 9 June 2001.

Adrián O. Goldin.

85. The Committee thanks Professor Adrián Goldin for his comprehensive mission report. With regard to the alleged murders of trade union members, the Committee notes that, according to the Government, the two people responsible for the murder of the trade union member Robinson Manolo Morales Canales were sentenced by the courts to 20 and 25 years imprisonment respectively. The Committee notes that investigations have begun into the murders of Oswaldo Monzón Lima, Hugo Rolando Duarte Cordón and Carlos Lij Cuc, and suspects have been identified. The Committee deeply regrets that the judicial proceedings relating to the murders of Luis Bravo and Pablo Antonio Guerra Pérez have been closed without those responsible being identified.

86. The Committee also notes that investigations have begun into the murders of Baldomero de Jesús Ramírez, José Feliciano Vivas and Carlos Solórzano. The Committee requests the Government to keep it informed with regard to these matters and to provide new information on the murders of José Alfredo Chacón Ramírez and Ismael Mérida. The Committee also requests the complainant to provide further information on the murder of Cesáreo Chanchavac.

87. Although most of these murders are not recent, the Committee notes with grave concern that, according to the mission report, the Human Rights Procurator stated that violations of freedom of association were very commonplace and that there was a high level of impunity in many labour relations and criminal cases. The Committee reminds the Government that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed; it hopes that the investigations and proceedings currently under way will allow those responsible for the murders to be identified and punished.

88. With regard to the alleged death threats, the Committee notes with grave concern that according to the mission report, trade union members continue to receive death threats. It notes that the Government states that investigations or legal proceedings are currently under way in the cases of Juan Gutiérrez Garciá, Rolando Quinteros and Pablo Garza. The Committee notes that José Angel Arzúa, Elmer Salguero García, Feliciano Izep Zuruy and José Domingo Guzmán have not provided official complaints of death threats. In this respect, the Committee requests the Government that an independent inquiry be established as soon as the authorities are aware of death threats having been made, whether or not an official complaint has been made. With regard to the alleged death threats to Everildo Revolario Torres, Herminio Franco Hernández, José Pinzón and Rigoberto Dueñas, the Committee notes that the Government has requested the Human Rights Procurator to provide them with protection.

89. On a more general note the Committee notes with interest that at the request of the direct contacts mission a special unit within the Prosecutor-General's Office, which aims to improve the efficiency of investigations into offences against trade union members, began to function in June 2001. The Committee hopes that the new unit will help speed up the criminal investigations already under way and that it will have sufficient budgetary allowance, control over the police and will help avoid duplication of investigative proceedings. The Committee supports the proposal of social dialogue with the assistance of the ILO (accepted by the Government and the social partners) to review, on a tripartite basis, the alleged acts of violence affecting trade union members and employees with a view to collaborating in efforts to bring down the incidence of such acts, ensure they are properly investigated and protect the victims. The Committee hopes that this technical assistance programme will begin as soon as possible.

90. The Committee notes that judicial proceedings have begun with regard to the allegation concerning the raid on the home of trade union member Francisco Ajtzoc Ajcac. The Committee notes that the Government did not reply specifically to the allegation of the stabbing of the General Secretary of the trade union of the Hotel Camino Real and reiterates its request to the Government to indicate whether an investigation has begun into this allegation.

91. With regard to the allegations of anti-union discrimination, the Committee notes that the direct contacts mission report indicates that exacerbating factors in violations of the principles of freedom of association and labour protection standards include the inadequacy of the courts, the unsatisfactory methods of appointing and supervising judges, the tendency for existing procedures to be abused (which is one factor explaining the delays in proceedings), the absence of adequate sanctions in cases of failure to comply with court orders, the impotence of the penal system to deal with violations of labour laws (excessive length of procedures, etc.). The Committee notes with interest that the Government and the social partners also accept that social dialogue established with the assistance of the ILO will identify "options for remedying the severe lack of institutional effectiveness evident from the questions raised before the Committee on Freedom of Association: aspects of this include reforming procedures for setting individual and collective labour disputes (following the proposal to speed up procedures and ensure compliance with existing laws and court rulings), the development of alternative techniques and mechanisms for prevention and settlement by the parties themselves of disputes".

92. The Committee hopes that ILO assistance will take place in the shortest possible time. The Committee also notes with satisfaction that two legislative decrees have been adopted, in particular Legislative Decree 18-2001 of 14 May 2001, adopted following the direct contacts mission, wherein, among other things, there are mentioned improvements relating to the issues presented in Case No. 1970. Specifically, the Committee notes that in the latter Decree, the power to impose sanctions - which had hitherto been the prerogative of the labour tribunals - has been given to the Labour Inspectorate, while penalties have been updated by increasing them and setting them in relation to the minimum wage, in order to ensure compliance.

93. The Committee insists on the need to punish more seriously the crime of non-compliance with judicial rulings (for example, those that call for the reinstatement of trade union members), as these are currently punished by a fine which is not enforced, and considers that the labour legislation should be revised so that cases of trade union discrimination are processed rapidly. The Committee requests the Government to take the necessary measures in consultation with the most representative employers' and workers' organizations.

94. With regard to the specific allegations of anti-union discrimination, the Committee notes that the judicial authority ordered the reinstatement of the trade union members dismissed from the Santa Lucía la Mayor farm and the El Tesoro farm, and the dismissed workers from Santa Anita farm accepted an out-of-court settlement with the farm. The Committee notes that the judicial authority declared the order of reinstatement of trade union members from La Argentina farm overruled but ordered that the workers be paid compensation. The Committee also notes that the judicial authority lifted protective measures for trade union members at the San Rafael Panam farm and for a number of trade union members at the La Patria farm (dismissed in March 1996).

95. The Committee notes, however, that the judicial proceedings relating to dismissals at the Ofelia and La Patria farms (dismissed in August 1995) and the Santa Fe and La Palmera farms are still pending. The Committee requests the Government to provide specific information in this respect, and also to provide information on the dismissals at the El Arco farm (1997) and the alleged impossibility of negotiating a collective agreement at the San Carlos Miramar farm. The Committee emphasizes the importance of revising judicial proceedings in order to avoid the possibility of four legal proceedings or at least so that the legislation ensures that the legal decisions on reinstatement in the first instance are provisionally carried out until confirmed during a later appeal. Finally, the Committee draws the Government's attention to the availability of ILO technical assistance to facilitate the implementation of the Committee's recommendations.

Case No. 1890 (India)

96. 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 324th Report, paras. 56-58).

97. In communications dated 17 July and 21 August 2001, the Government repeats its previous information according to which two inquiries, in respect of Mr. Sitaram Rathod and Mr. Shyam Kerkar, are still in progress. With regard to the second group of seven workers suspended pending inquiry, the Government indicates that only two inquiries, in respect of Mr. Ambrose D'Souza and Mr. Mukund Parulekar, are still in progress. As regards the case of Mr. Malwankar, the Government states that adjudication proceedings are in progress. The next date for hearings is fixed for 9 October 2001. Further developments will be intimated by the Government in due course.

98. 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 transfer of FABREU members in April 1995 following 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 not an essential service in which the strikes can be prohibited (see 307th Report, paras. 366-375). The Committee must once again deeply deplore the fact that the events to which the various proceedings and inquiries are related occurred in 1995 and earlier on. With respect to Mr. Malwankar, the Committee once again expresses the firm hope that the court proceedings will be expedited and requests the Government to continue to keep it informed of the outcome thereof. Furthermore, the Committee once again requests the Government to continue to keep it informed of the outcome of the inquiries in respect of Messrs. Sitaram Rathod, Shyam Kerkar, Ambrose D'Souza and Mukund Parulekar.

Case No. 2078 (Lithuania)

99. The Committee last examined this case at its meeting in June 2001 when it recalled 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 the minimum service to be provided and the need to revoke Decision No. 1443V which had set out the required minimum service for passenger transportation services in Vilnius. The Committee requested the Government to keep it informed of the progress made in this regard (see 325th Report, paras. 44-46).

100. In a communication dated 17 July 2001, the Government indicates that amendments of the Act on the Settlement of Collective Disputes ensuring participation of workers' and employers' organizations concerned in the determination of minimum services have been prepared and submitted to the social partners for their observations. Furthermore, provisions of this Act have been included in the draft Labour Code which is being discussed with the social partners and is expected to be adopted this year. As concerns Decision No. 1443V, the Government indicates that the municipality of Vilnius has informed it that there is no need to revoke this decision as it was set out for that particular case only. If a new dispute were to arise, a new determination will need to be made about the minimum services, taking into account the concrete situation. Finally, the Government recalls that there is no dispute at present given that a collective agreement was signed at the Vilnius Bus Depot Ltd. in February of this year and that the negotiators of the agreement at the Vilnius Trolleybus Depot Ltd. now agree on all items and the agreement is to be signed on 26 July. In a communication dated 10 August 2001, the Government indicates that the collective agreement at the Vilnius Trolleybus Depot Ltd. was signed on 31 July.

101. The Committee notes this information with interest, as well as the Government's indication that amendments have been prepared to the legislation so as to ensure the participation of the workers' and employers' organizations concerned in the determination of minimum services. The Committee hopes that these amendments will be adopted in the near future and requests the Government to keep it informed of the progress made in this regard.

Case No. 1980 (Luxembourg)

102. When it last examined this case at its meeting of March 2001 (see 324th Report, paras. 623-675), the Committee requested the Government to take the necessary measures so that an organization whose representativeness in a given sector, in line with ILO principles, had been objectively demonstrated and whose independence was established, was able to sign, and where necessary to be the sole signatory to, collective agreements, in order to make Luxembourg practice fully compatible with freedom of association.

103. In a communication of 27 July 2001, the Government stated that it did not intend to oppose the Committee's recommendation. However, it wished to place certain observations relating to the case before the Committee. The Government explained that the Luxembourg system of social dialogue was based on institutionalized tripartism comprising strong organizations on the side of the social partners, which were present throughout the country and in most branches of economic activity. This presence accounted for their representativeness but also explained their responsibility for drawing up answers to questions of national interest. For example, when the national action plan for employment was drawn up, with a view to implementing the European employment strategy, the national Tripartite Coordination Committee, consisting of the major representative trade unions, adopted wage restraint as one of the points of the plan. In this regard, the Government was of the opinion that only trade unions that were able to go beyond the partisan interests of a group of employees, and able to act on behalf of what was ultimately the common interest of all salaried employees, would have the necessary responsibility and influence to contribute to the implementation of a national policy of this sort.

104. Moreover, the Government considers that the Committee's recommendation may carry the seeds of corporatism in it, by giving power - in some cases excessive - to trade unions which exclusively defend the interests of a fairly small specific group of salaried employees. In addition, even though the short-term interest of salaried employees represented by a purely sectoral trade union may appear relevant, such a selfish corporatist attitude could count against them in the long term. Hence, for the management of a crisis in one sector to form a relevant part of a policy of solidarity taking into account the interests of salaried employees directly concerned and of the national community, it would be necessary to have independent and powerful unions. In this regard, the Government fears that the Committee's recommendation may pave the way both for an unhealthy fragmentation of the union scene and for the risk of "house" trade unions developing within enterprises. This would give such "single-enterprise" sectors an unexpected opportunity for signing collective agreements with a union whose development had been promoted by the employer and which would be easier to manipulate than powerful national unions.

105. Finally, the Government considers that a viable solution might be as follows: if a trade union has a strong presence in a sector, a collective agreement could not be signed without it, but the co-signature of a nationally representative union would be necessary. In this way, the principle defended by the ILO would be respected, without jeopardizing the Luxembourg social model. In addition, the Government said that it had initiated a reform of the legislation on collective agreements and that it wanted, among other things, to incorporate the ILO's position in its considerations. A preliminary draft law was due to be finalized shortly and the social partners would be consulted in connection with it.

106. The Committee noted with interest the detailed information supplied by the Government. While taking account of the specific nature of the Luxembourg social model, the Committee reiterated its earlier conclusions, namely that imposing national and multi-sectoral representation in interpretation of the 1965 Act is contrary to the principles of freedom of association since it could prevent the most representative union in a given sector from being the sole signatory to collective agreements and thus from defending fully the interests of the workers whom it represents. However, the Committee stresses the fact that the representativeness of a trade union organization in a given sector must be objectively demonstrated in line with ILO principles. Moreover, as regards the independence of a trade union organization and the danger of the development of trade unions that are promoted and manipulated by the employer, the Committee again stresses the fact that it is only when their independence vis-à-vis the employer and the authorities is established that trade union organizations may have access to collective bargaining. The Committee again reiterates that the criteria of representativeness and independence attributed to trade union organizations must be determined by a body offering every guarantee of independence and objectivity. Finally, noting the legislative reform undertaken by the Government on this issue, the Committee reminds the latter that it can have recourse to technical assistance from the ILO with respect to the implementation of its recommendation.

Case No. 2109 (Morocco)

107. The Committee examined this case relating to the dismissal of trade unionists following the establishment of a trade union committee and anti-union repression at its June 2001 meeting (see 325th Report, paras. 448-462). On that occasion, the Committee requested the Government to take all necessary measures to ensure that the ruling handed down by the relevant court - if the ruling confirmed the labour inspectorate's conclusion that a violation of freedom of association had been committed in the Fruit of the Loom company - was fully and effectively applied and that the eight trade union officers were reinstated in their respective jobs without loss of pay and with full compensation. The Committee also requested the Government to keep it informed of developments in regard to the attitude of the Governor of the town of Salé who had made statements against trade unions and acted in an anti-union manner, in particular with regard to the trade union members of the Fruit of the Loom company in the town of Salé.

108. In its communication dated 21 September 2001, the Government states that, in accordance with the legislation in force, the two reports of the labour inspectorate of their meetings with the employer were transmitted to the relevant court and that the Committee will be informed of the ruling handed down by this court as soon as this takes place. Moreover, the Government states that the employees involved in this action have submitted a case to the courts for compensation for wrongful dismissal.

109. The Committee takes note of this information. It once again requests the Government to inform it of the decision of the court on the two records submitted by the labour inspectorate, and of the ruling on the case brought before the court by the employees for compensation for wrongful dismissal. Finally, the Committee requests the Government to keep it informed of the measures taken or envisaged with regard to the allegations of anti-union behaviour on the part of the Governor of the town of Salé.

Case No. 2034 (Nicaragua)

110. The Committee last examined this case, relating to unjustified dismissals of trade union officials, at its June 2001 meeting (see 325th Report, paras. 47-49). On that occasion, the Committee requested 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. In a communication dated 7 August 2001 the Government reiterates that the persons concerned have not been reinstated as the procedures laid down in national legislation have not been exhausted.

111. In this regard, the Committee regrets to note this information once again and urges the Government to take the necessary measures immediately to ensure that the abovementioned trade union officials are reinstated in their posts and any back wages paid.

Case No. 2112 (Nicaragua)

112. The Committee last examined this case, relating to anti-union dismissals and transfers and withdrawal of the check-off facility in the health sector, at its June 2001 meeting (see 325th Report, paras. 489-509). On that occasion, the Committee requested the Government to ensure that the transferred officers are not impeded in the exercise of their trade union activities, and to re-establish the payroll check-off facility.

113. In a communication dated 20 July 2001, the Government refers to the communication of the Ministry of Labour dated 16 April 2001, already examined by the Committee at its June 2001 meeting, in which it points out that the deduction of union dues is carried out once the express consent of each worker has been obtained and that a list of such deductions must be submitted to the employer; should the employer refuse to authorize them, the trade union has the right to ask the departmental offices of the Ministry of Labour to take the necessary measures to guarantee compliance with labour legislation.

114. The Committee regrets that the Government has not provided any new information and urges the Government immediately to adopt appropriate measures to guarantee the exercise of trade union activities by the transferred officers and to proceed to re-establish the payroll check-off facility.

Case No. 1996 (Uganda)

115. During its previous examination of this case in June 1999 (see 316th Report, paras. 642-669), the Committee had requested the Government to take the necessary measures to ensure that certain provisions of the Trade Unions Decree of 1976 were amended in line with freedom of association principles. Noting the Government's indication that steps were already being taken to address this problem within the framework of the ongoing labour law reform process in the country, the Committee had requested the Government to keep it informed of any developments in this regard. The Committee had further noted that the Uganda Textile, Garments, Leather and Allied Workers' Union (UTGLAWU) had not been recognized by management in several enterprises following privatization despite the fact that the union had managed to fulfil the stringent requirements set out in the Trade Unions Decree with regard to union recognition, and that the UTGLAWU had filed legal proceedings against a number of companies in order to obtain recognition for collective bargaining purposes. The Committee had therefore requested the Government to keep it informed of the outcome of these various court proceedings.

116. In a communication dated 24 August 2001, the Government points out that it has adopted a policy of consultation and dialogue as a strategy for dealing with trade disputes related to the non-recognition of unions. To this end, the Minister of Gender, Labour and Social Development had initiated dialogue between the UTGLAWU and the management of Nytil Picfare company. According to the Government, both management and union officials had indicated willingness and readiness to put aside their differences and negotiate for recognition of the UTGLAWU at the Nytil Picfare company. However, before the negotiations could yield any results, the company went into receivership and was bought by a new management which took over in December 2000. The company thus changed hands and now has a new name "Southern Range Nyanza Ltd.". The process of negotiation was disrupted and the UTGLAWU is now pursuing afresh the matter of recognition with the new management. A meeting is scheduled to take place by the end of this month to discuss the proposed Memorandum of Procedural and Recognition Agreement. It is the Government's hope that the matter which has been pending for so long will be resolved through the cooperation and understanding of the parties.

117. The Government adds that in the meantime, the inconsistencies in the relevant legal provisions of the Trade Unions Decree have been addressed within the framework of the Uganda Law Reform Project carried out under the ILO/UNDP Support for Policy and Programme Development (SPPD). The revised laws are in the form of two draft bills to be tabled before Cabinet for consideration in due course.

118. The Committee notes that the Government took certain conciliatory measures in order to try and obtain Nytil Picfare company's recognition of the UTGLAWU for collective bargaining purposes but the process of negotiation was disrupted since the company was bought and taken over by a new management in December 2000. The Committee nevertheless observes that the UTGLAWU had pursued the matter of recognition with the new management and that a meeting is scheduled to take place on a related Memorandum of Procedural and Recognition Agreement. Recalling its previous conclusion (see 316th Report, para. 667) that employers should recognize for collective bargaining purposes the organizations representative of the workers employed by them or organizations that are representative of workers in a particular industry, the Committee trusts that the management of the new company, the Southern Range Nyanza Ltd., will recognize the UTGLAWU. It requests the Government to keep it informed of the outcome of the meeting to this end between the two parties. Furthermore, the Committee had noted previously that the UTGLAWU had filed legal proceedings against a number of companies (apart from Nytil Picfare Ltd.) in order to obtain recognition for collective bargaining purposes (316th Report, para. 667). Noting that the Government has not provided any information in this regard, the Committee once again requests the Government to keep it informed of the outcome of these various court proceedings.

119. Finally, the Committee notes with interest that two draft bills, which would amend the provisions in the Trade Unions Decree inconsistent with freedom of association principles, are to be tabled before Cabinet for consideration in due course. Noting that these bills were drafted with ILO technical assistance, the Committee requests the Government to keep it informed of any progress made in their adoption.

Case No. 2006 (Pakistan)

120. The Committee last examined this case at its June 2001 meeting when it had urged the Government to lift the ban on trade union activities in the Karachi Electric Supply Corporation (KESC) and to restore the trade union and collective bargaining rights of KESC workers without delay. It had also requested the Government to keep it informed of any developments in respect of union officials from the Pakistan Water and Power Development Authority (WAPDA) and KESC who were forcibly retired (see 325th Report, paras. 53-56).

121. In a communication dated 20 August 2001, the Government states that trade union activities and the check-off system have not yet been restored in KESC due to its ongoing financial and organizational restructuring. The organization is facing recurring operational deficits due to a number of factors. A technical and financial support agreement has been reached between the Government and the Asian Development Bank which could serve as an instrument to improve KESC's financial situation. The restoration of trade union rights in KESC depends on a favourable change in its financial situation.

122. 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 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 once again urges the Government to lift the ban on trade union activities in KESC. It further urges the Government to take the appropriate measures to ensure that the right of the KESC Democratic Mazdoor Union as collective bargaining agent is restored without delay. It requests the Government to keep it informed of developments in this regard.

123. 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. 1965 (Panama)

124. The Committee last examined this case, concerning arrests and ill-treatment of trade unionists, at its March 2000 meeting (see 324th Report, paras. 769-778). On that occasion, the Committee requested the Government to keep it informed of the results of: (a) the judicial procedures initiated by the workers of the Aribesa enterprise, Mr. Porfirio Beitia, Mr. Francisco López, Mr. Eugenio Rivas, Mr. Julio Trejos and Mr Darío Ulate, and as regards the dismissed workers for whom reinstatement is impossible, to make efforts to ensure that funds are secured to compensate them; and (b) the investigations undertaken by the Government Procurator's Office into the alleged raid on SUNTRACS headquarters and the alleged ill-treatment suffered by a number of Aribesa workers during their detention.

125. In a communication dated 30 May 2001, the Government attaches a copy of the note sent to the Procurator-General of the Nation requesting it to carry out the necessary investigations into the raid on SUNTRACS headquarters in January 1998 and the ill-treatment inflicted on those who were detained on that occasion.

126. The Committee notes this information. In this regard, the Committee expresses the hope that the investigation will be concluded in the very near future and requests the Government to keep it informed of its final outcome. At the same time, the Committee regrets that the Government has not provided any information on the judicial proceedings initiated by the abovementioned workers of the Aribesa enterprise and on the fund to compensate those workers who cannot be reinstated. The Committee therefore urges the Government to send the information requested without delay.

Case No. 1796 (Peru)

127. At its June 2001 meeting, the Committee requested 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 concerning their dismissal (see 325th Report, para. 60). In a communication dated 24 February 2001 the General Confederation of Workers of Peru (CGTP) recalls that Mr. Arias Vildoso was dismissed in violation of his trade union immunity (as recognized by the court of first instance) and that the higher judicial authorities subsequently followed the opinion of a minority of the magistrates, with the result that he was denied reinstatement.

128. In its communications dated 26 June and 29 August 2001, the Government states that, as mentioned by the CGTP, the Supreme Court of Justice declared the appeal lodged by Mr. Iván Arias Vildoso inadmissible and that the Government must abide by this decision. The Government also indicates that it will inform the Committee of the decision of the Supreme Court of Justice in the case of Mr. Delfín Quispe Saavedra as soon as it is handed down.

129. The Committee notes this information. The Committee requests the Government to keep it informed of the final outcome of the proceedings concerning the trade union leader Mr. Delfín Quispe Saavedra.

Case No. 1880 (Peru)

130. At its March 2001 meeting, the Committee formulated the following recommendations concerning the pending allegations (see 324th Report, para. 861):

- as concerns the dismissal of the trade union official Mr. Adriel Grispín Villafuerte Collado at the Electro Sur Este S.A. Puno enterprise, the Committee hopes that the judicial authorities will rapidly hand down their decision and that this decision will be in full conformity with the principles of freedom of association. The Committee urges the Government, if this decision concludes that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union official is reinstated in his post. The Committee requests the Government to keep it informed in this regard and to keep it informed of the final ruling handed down by the judicial authority;

- the Committee requests the Government to take the necessary measures to ensure that an investigation is carried out into the motives for the dismissal of the trade union official Mr. Barrueta Gómez and, if they are found to have an anti-union character, to reinstate him in his post. The Committee requests the Government to keep it informed of the outcome of this investigation;

- the Committee requests the Government to take steps to ensure that the decisions to cancel the registration of the (following) trade union organizations (the Single Trade Union of Light and Power Workers of Cerro de Pasco; the Single Trade Union of Workers and Allied Workers of Tingo María; the Single Trade Union of Workers of Selva Central and Allied Workers; and the Single Trade Union of Light and Power Workers and Allied Workers of Ayacucho) are suspended until the courts give a ruling on the matter. The Committee requests the Government to keep it informed of any measures adopted in this regard;

- the Committee expresses the hope that the judicial authorities will give a ruling in the near future on the dismissal of the trade union official Mr. Walter Linares Sanz, and requests the Government to keep it informed of the final ruling.

131. In its communications dated 18 and 22 January, 22 February and 26 June 2001, the Government states that the judicial proceedings initiated by Mr. Adriel Grispín concerning his dismissal are still under way. As regards the dismissal of Mr. Walter Linares Sanz, the Supreme Court of the Republic ruled that the appeal for review lodged by the enterprise was inadmissible.

132. The Committee takes note of this information. The Committee requests the Government to communicate the final outcome of the proceedings concerning the dismissal of Mr. Adriel Grispín. The Committee also requests the Government once again to carry out an investigation into the dismissal of trade union official Mr. Barrueta Gómez and, if it is found to be based on anti-union motives, to reinstate him. Lastly, the Committee again requests the Government to take steps to ensure that the decisions to cancel the registration of all of the trade union organizations mentioned above are suspended until the courts give a ruling on the matter. The Committee requests the Government to keep it informed of any measures adopted in this regard.

Case No. 2076 (Peru)

133. At its March 2001 meeting, the Committee formulated the following recommendations on pending allegations (see 324th Report, para. 875):

- concerning the dismissal of the trade union officials Sixto M. Olivos León, Heraldo Z. Torres Osnayo, Juan D. Ayulo Petzoldt and Luis Santiago Puertas at the Compañía Peruana de Radiodifusión S.A., the Committee expects that the judicial authorities will rapidly hand down their decisions and that these decisions will be in full conformity with the principles of freedom of association. The Committee urges the Government, if these decisions conclude that there have been acts of anti-union discrimination, to take the necessary measures to ensure that the trade union officials are reinstated in their posts. The Committee requests the Government to keep it informed of the judgements handed down in this respect;

- the Committee requests the Government to confirm whether the trade union leaders Mr. Rey Fernández Patiño and Adriel Vargas Cáritas have in fact been reinstated in their posts with full compensation, as ordered by the court.

134. In its communications of 7 and 21 May and 26 June 2001, the Government states that the court of first instance has ordered that Mr. Luis Santiago Puertas be reinstated and paid his wages due; however, the enterprise could still contest this decision. The courts of first and second instance also ordered the reinstatement of Mr. Sixto M. Olivos. In addition, the enterprise has lodged an appeal against the court ruling concerning trade union leader Mr. Torres Osnayo (whose reinstatement was ordered in first instance), who was awarded a provisional benefit of 1,432 new soles. As regards the dismissal of Mr. Ayulo Petzoldt, the court of first instance ruled in his favour but an appeal has been lodged against this decision.

135. The Committee notes this information with interest and again requests the Government to confirm whether the trade union leaders Mr. Rey Fernández Patiño and Mr. Adriel Vargas Cáritas have in fact been reinstated in their posts with full compensation, as ordered by the courts. The Committee also requests the Government to communicate the final outcome of the proceedings concerning trade union officials Mr. Torres Osnayo and Mr. Ayulo Petzoldt.

Case No. 1826 (Philippines)

136. The Committee last examined this case at its June 2001 session (see 325th Report, paras. 78-80). On this occasion it had requested the Government to ensure that an impartial certification election be held at Cebu Mitsumi Inc. and to consider examining the legal framework for certification elections, with a view to preventing excessive and prejudicial delays in future. The Committee requested to be kept informed of any progress in this regard and also requested the Government to respond to new allegations concerning the suspension of Mr. Ferdinand Ulalan, President of the Cebu Mitsumi Employees' Union (CMEU).

137. In a communication dated 7 June 2001, the complainants provided detailed information concerning a certification vote held on 4 May 2001, alleging that several irregularities took place, amounting to violations of Convention No. 87 by the employer, namely: a few days before the election, the management of Cebu Mitsumi announced verbally that there would be no production on 4 May 2001 and that all employees would be on forced leave, due to lack of orders; officials of the Department of Labor and union representatives were allowed entry into the company premises only two hours after the scheduled voting time, and they underwent unusually stringent security checks (strict ban on tape recorders, cameras and any other audiovisual device); the voting time was delayed for several hours, due in part to delays in the construction of polling booths; posters calling for the boycott of CMEU were posted at the gate and inside the building; strong presence of security guards and unusual blockades outside the company site. As a result, out of the 16,000 employees at Cebu Mitsumi, no more than 150 employees showed up, most of whom were line managers excluded from the bargaining unit. According to the complainants, the absence of workers in and outside the company premises was due to the management's threats of dismissal. The current labour laws of the Philippines are inadequate as they provide no criminal sanctions against employers who refuse to cooperate in certification elections.

138. In a communication dated 31 August 2001, the Government indicates that out of 123 votes cast at the certification election of 4 May 2001, there were five votes in favour of the CMEU, 94 votes against it, three spoiled votes and 21 challenged votes. In view of the circumstances, the Government decided to submit the whole case, including a petition of protest received from the CMEU to a mediator-arbiter for appropriate action. The Government also filed a formal charge with the Philippine National Police against the security firm involved in the incidents, for the revocation of its licence and that of 11 security guards.

139. The Committee takes note of the information provided in this case, which concerns the exercise of trade union rights in the Danao export processing zone. Recalling that the CMEU initial petition for a certification election was filed back in February 1994, and that this case has been examined on no less than six occasions (302nd Report, paras. 386-414; 305th Report, paras. 54-56; 308th Report, paras. 65-67; 316th Report, paras. 72-75; 323rd Report, paras. 72-74; 325th Report, paras. 78-80), the Committee notes with regret that the certification vote, when it finally took place after lengthy delays and several postponements, was marred by a number of irregularities, which led the Government to submit the case to a mediator-arbiter for "appropriate action". As regards the case immediately at hand, in view of the lengthy delays, the Committee expresses the firm hope that the mediator-arbiter will issue in the very near future a decision which would be compatible with the principles of freedom of association, and requests the Government and the complainant to keep it informed of developments in this regard. The Committee reiterates its request that the Government reconsider the relevant provisions, with a view to establishing a legislative framework allowing for a fair and speedy certification process, and providing adequate protection against acts of interference by employers in such matters. The Committee requests the Government, once again, to provide its observations concerning the suspension of Mr. Ulalan.

Case No. 1914 (Philippines)

140. When it last examined this case, which concerns dismissals of trade unionists further to strike action, detention of unionists and acts of violence against strikers, the Committee expressed its profound regret at the inordinately long delays already observed in this matter: five years since the first order for reinstatement (October 1995) of around 1,500 leaders of the Telefunken Semiconductors Employees' Union (TSEU); and three years since the Supreme Court had issued a decision (December 1997) ordering the immediate reinstatement, without exception, of all the TSEU workers concerned. The Committee urged the Government to guarantee expeditious and effective protection against acts of anti-union discrimination, and insisted that every effort be made to ensure that all these workers be reinstated in their functions.

141. In its communication of 31 May 2001, the Government states that the Supreme Court issued, on 18 December 2000, a decision dismissing the decision of 23 December 1999 and affirming the resolution of 19 April 2000 of the Court of Appeals.

142. The Committee takes note of this communication, observing with regret that the Government merely states that the Supreme Court issued a judgement upholding or reversing the decisions of lower courts, without giving any substantive information on the practical effects of said judgement. On the basis of information at its disposal, the Committee is unable to draw any conclusions on the impact of the Supreme Court's judgement of 18 December 2000. Noting with deep concern that yet another year has elapsed since the anti-trade union dismissals (September 1995), without any concrete implementation of the initial reinstatement order (issued in October 1995) or of the Supreme Court decision to the same effect (issued in December 1997), the Committee recalls that justice delayed is justice denied and reminds the Government that it is responsible for preventing all acts of anti-union discrimination, and for ensuring that remedies in this respect are rapid and effective. The Committee urges once again the Government rapidly to take appropriate measures to ensure that all TSEU workers dismissed for their participation in strike action in September 1995 be immediately reinstated in their jobs under the same terms and conditions prevailing before the strike, with full compensation for lost jobs and benefits. The Committee requests the Government to keep it informed of developments by providing substantive information.

Case No. 1785 (Poland)

143. The Committee last examined this case, which concerns the issues of cash compensations to trade union organizations and assignment of real estate property to NSZZ "Solidarnosc" and the Polish Trade Union Alliance (OPZZ), at its March 2001 meeting. Whilst mindful of the complexity of the case, the Committee recalled that this representation dated back to 1995, expressed the hope that all remaining issues could be settled by October 2001 as the Government had announced, and requested to be kept informed of developments (see 324th Report, paras. 73-77).

144. In a communication of 31 May 2001, the Government states that, as a result of interministerial consultations in September 2000, it turned out that the issuance of treasury bonds in connection with restitution of trade union property had to be dealt with through an act of Parliament rather than in a regulation of the Minister of Finance. The Government introduced a bill on a priority basis, which was adopted on 29 March 2001 and entered into force on 26 May 2001. This Act provides that outstanding and new state treasury liabilities will be paid with zero-coupon treasury bonds, freely tradable on the secondary market. The payments will be made in two stages: within three months of the entry into force of the Act as regards liabilities resulting from the Vindication Commission's rulings which become final before 31 December 2001; by 30 April 2002 for the others. As of 31 December 2000, the outstanding liabilities amounted to PLN158 million (including accrued interests), which means that most of the treasury liabilities would be satisfied during the first stage, i.e. no later than 26 August 2001. It is estimated that a maximum amount of PLN30 million (including interest) will have to be paid at the second stage, i.e. by 30 April 2002. As of 30 April 2001, 282 claims of restitution of trade union property seized under martial law were under review by the Vindication Commission, which believes that it will be able to close all cases by November 2001.

145. The Government indicates that drafting work is still in progress on the future regulation concerning the legal status of property of the former Trade Unions' Association and other trade union organizations dissolved under martial law (the sector and so-called "autonomous" trade unions). However, legal, social and political potential complications prevented that work to progress to the extent that consultations with the national commission of Solidarnosc would have been warranted. The Government will do so as soon as the drafting process brings about satisfactory results.

146. The Government adds, as regards two related issues (although not raised by Solidarnosc), that legal proceedings filed by OPZZ in respect of financial compensation allegedly owed by the State, and Solidarnosc's counter pleadings on the same issue, have now reached the stage of the Constitutional Court. In addition, the Sejm is currently examining a Senate bill on the Employees' Recreation Fund, which would determine the legal status of that property and set out the rules for its division.

147. The Committee notes this information with interest, and requests the Government and the complainant to confirm that all claims pending before the Vindication Commission have actually been settled. The Committee further requests the Government to keep it informed on developments concerning the status of the Employees' Recreation Fund, and the future regulation of the legal status of property of the former Trade Unions' Association and other trade union organizations dissolved under martial law.

Case No. 1972 (Poland)

148. The Committee last examined this case at its March 2001 meeting, where it expressed its hope that the judicial proceedings concerning the dismissal of Mr. Grabowski, chairperson of the trade union Sprawiedliwosc, would soon be concluded and requested to be provided with the final court decision. The Committee also requested the Government to provide the text of the Act on the Social and Economic Commission as soon as adopted (see 324th Report, para. 80).

149. In its communication of 31 May 2001, the Government indicates that Mr. Grabowski's case is still pending before the XIth Labour Division of the District Court for Warsaw-Praga South, whose next session has been set for 18 September 2001. The Act on the Social and Economic Commission has not yet been adopted, and the Government will forward it to the Committee as soon as this is done.

150. The Committee takes notes of this information. It expresses, once again, the firm hope that the proceedings concerning the dismissal of Mr. Grabowski will be concluded soon and requests the Government to provide the final court decision. The Committee once again requests the Government to provide the text of the Act on the Social and Economic Commission as soon as it is adopted.

Case No. 2091 (Romania)

151. The Committee examined the substance of this case at its March 2001 meeting, when it invited the Government, after consultation with the concerned parties regarding the appropriate practical details, to take the required measures to secure the prompt reinstatement of trade union leader Mr. Ion Mihale in his duties and to keep it informed of developments in this situation (324th Report, para. 896).

152. In its communication dated 12 September 2001, the Government states on the basis of the information obtained from the management of the Minmetal SA enterprise that Mr. Mihale was dismissed not because the strike was declared illegal by the court, but because of his disciplinary record and the circumstances of the case. According to the Government, Mr. Mihale was accused of several breaches of discipline at the time the strike (in which 314 out of 702 workers did not want to participate) was declared, and in particular of having forged the signatures of 19 workers. In line with the spirit of the Committee's recommendations, in August 2001, the Minmetal SA management had carried out a survey among the 345 workers (out of 524) who were present at work on the subject of reinstating Mr. Mihale; 94 per cent of those questioned responded negatively and 79 per cent of them felt that such a decision would be detrimental to the harmony and constructive spirit of the labour relations climate now prevailing in the enterprise. The management therefore considers that the prompt reinstatement of Mr. Mihale, disregarding both the decision of the competent court and the results of the survey carried out at the workplace, could have unforeseeable consequences for the working atmosphere in the enterprise.

153. While it is aware of its obligations ensuing from the ratification of international labour Conventions and is open to the recommendations made by the Committee, as evidenced by the amendment of the legislation respecting the settlement of labour disputes (Act No. 168/1999), the Government remains convinced that it must, first and foremost, ensure compliance with the law.

154. The Committee notes all of this information. As regards the reasons for Mr. Mihale's dismissal, the Committee recalls that its examination of the case was based both on the documents and arguments put forward by the complainant and on those submitted by the Government concerning the courts' characterization of the dismissal. As regards the reasons for judgement of the court (Judgement No. 12712, Court of Constanta, of 11 August 1999, upheld by Judgement No. 2251, civil chamber of the Court of Constanta, of 15 September 1999), which do not mention the alleged forgery of signatures or Mr. Mihale's disciplinary record, the Committee concluded, inter alia, that: "the decisive factor in any analysis rests on whether the strike is lawful or not. Without taking a position as to whether the interpretation of these provisions as rendered by the court is founded in light of the particular circumstances, the Committee emphasizes that, whereas the right to strike is not an absolute right and must be exercised in observance of national legislation, the legal provisions must also conform to the principles of freedom of association" (324th Report, para. 891). The Committee agrees with the Government that it is important to ensure compliance with the law, but must once again emphasize that the law must itself conform to the principles of freedom of association. The Committee recalls in addition that no one should be penalized for carrying out or attempting to carry out a legitimate strike (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 590).While taking account of the actual situation in the Minmetal SA enterprise, the Committee trusts that a solution can be found that is satisfactory for the company and for the person mainly concerned, Mr. Mihale. The Committee requests the Government and the complainant to keep it informed of the measures taken to follow up on its recommendations, and of developments in the situation.

Case No. 2043 (Russian Federation)

155. The Committee last examined this case at its meeting in November 2000 when it requested the Government to urgently take all appropriate measures so that the arrears owing to Zashchita be paid immediately by Murommashzavod Ltd., and that the situation be remedied as regards future remittances (see 323rd Report, paras. 493-505).

156. In a communication dated 6 June 2001, the Government indicates that, upon verification by the Directorate of the Ministry of Justice, it was found that the bailiff's office received a writ of execution on 9 June 1999 concerning the enforcement of payment of sums by the Murommashzavod joint-stock company to the Zashchita first-level trade union, on the basis of which enforcement proceedings were instituted. The bailiff is taking all the measures for the settlement of the debt, but this task is made difficult by the fact that during the period 1999-2000 writs of execution were issued against the same debtor containing claims ranking second and fourth in priority. All of the funds raised through the sale of the attached property have been distributed in accordance with the requirements laid down in section 78 of the Federal Act respecting enforcement proceedings. The claims of the Zashchita trade union rank fifth in priority, while the abovementioned Federal Act provides that the claims of each subsequent rank will be settled after the full settlement of the claims.

157. The Committee takes due note of this information and requests the Government to keep it informed of the progress made in settling the claims of the Zashchita trade union to the union dues which were deducted from members' wages but never credited to the union account.

Case No. 2018 (Ukraine)

158. The Committee last examined this case at its June 2001 meeting when it requested the Government to ensure that ILO principles relating to the right to strike were taken into account in the draft amendments to the Transport Act. The Government was further requested to reply to the observations contained in the communication of 20 April 2001 submitted by the complainant in this case, the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (NPRP) (see 325th Report, paras. 85-88).

159. The complainant's communication of 20 April 2001 alleged that, following the submission of the Independent Trade Union's demands, the administration of the Ilyichevsk Maritime Commercial Port began to take steps aimed at liquidating the union by forcing union members, with intimidation and threats, to sign already prepared letters of resignation. Union members are being persecuted and unacceptable conditions are imposed. Furthermore, the complainant alleges that trumped-up criminal charges were brought against its president two years ago and there has still been no investigation or inquiry.

160. In a communication dated 18 July 2001, the Government indicates that the matters raised in the complainant's communication were investigated thoroughly by the Chief Labour and Social Security Directorate of the Odessa regional administration and by the regional labour inspectorate together with the Odessa Department of the National Mediation and Conciliation Service. The investigation showed that, in accordance with the Act respecting trade unions, their rights and guarantees of their activities, the five trade unions operating at the port enjoyed equal rights, representatives of all the unions participated in collective talks and signed the collective agreement with the port administration - an agreement that was also signed on behalf of the Independent Trade Union. The investigation did not find a single case of pressure being brought to bear by the port authorities on workers to force them to leave the Independent Trade Union, although of course any worker has the right to join a different union or simply to leave his or her union. Nor were any cases found of dismissal on grounds of trade union membership. As concerns the criminal proceedings against the president of the Independent Trade Union, the Government indicates that the case was closed on 1 June 2001 in view of the failure to establish the president's guilt. The Government adds generally that formal legal complaints may be brought before the courts regarding any actions by the port authorities which may be considered to be unlawful. Finally, the Government states that a meeting of the council of the port's work brigade leaders unanimously adopted a resolution on 3 July 2001 censuring the leadership of the Independent Trade Union and proposing that the latter organize an extraordinary meeting for the purpose of holding new union elections and that the Independent Trade Union representatives were informed of this resolution.

161. In communications dated 12 July and 23 August 2001, the Confederation of Free Trade Unions of Ukraine (to which the complainant is affiliated) takes issue with the findings of the commission set up to investigate the complainant's allegations in respect of anti-union discrimination at the Ilyichevsk Maritime Commercial Port. The complainant (NPRP) submits further information in communications dated 7 August and 19 October 2001 concerning recent violations of its collective bargaining rights.

162. In a further communication dated 23 August 2001, the Government adds that the Ministry of Transport has been preparing a new transport bill which will include the following provisions:

Voluntary cessation of work (strike) in transport undertakings may be initiated in accordance with the procedure established under relevant legislation. Except in cases where such cessation of work would endanger the life and health of individuals or pose an environmental threat, hinder the prevention of natural disasters, accidents or major incidents, epidemic or epizootic outbreaks, or impede efforts to deal with the consequences of such events.

163. The Committee notes the information provided by the Government concerning the investigations carried out at the Ilyichevsk Maritime Commercial Port in respect of the allegations made on anti-union discrimination and harassment. Furthermore, while noting that the criminal case against the president of the Independent Trade Union has now been dropped, the Committee observes with regret that the charges against him were maintained for over two years, despite the apparent absence of any proof of misconduct. In this respect, the Committee wishes to recall the importance it attaches to the principle that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 43). As concerns the information communicated by the Government concerning the resolution of the council of the port's work brigade leaders, and in the absence of any clear indication as to whether the work brigade leaders are actually members of the Independent Trade Union, the Committee wishes to recall that, according to Articles 2 and 3 of Convention No. 87, workers shall have the right to establish organizations of their own choosing and these organizations, through their members, shall have the right to elect their representatives in full freedom and the authorities should refrain from any undue interference in this regard (see 324th Report, para. 985). The Committee trusts that the Government will, where necessary, ensure respect for this principle in the Ilyichevsk Maritime Commercial Port.

164. The Committee notes with interest the draft amendment in respect of section 18 of the Transport Act concerning strike action and requests the Government to keep it informed of the progress made in this respect and to transmit a copy of the new Act as soon as it has been adopted. Finally, the Committee requests the Government to reply to the additional allegations raised in the communications from the Confederation of Free Trade Union of Ukraine and the complainant's communications dated 7 August and 19 October 2001.

Case No. 2038 (Ukraine)

165. The Committee last examined this case at its March 2001 meeting when it noted with satisfaction the prospects of a technical assistance mission to the country in respect of the implementation of the judgement of the Constitutional Court of Ukraine which had declared unconstitutional the clauses of sections 11 and 16 of the Trade Unions Act which restricted the right to freedom of association (see 324th Report, paras. 85-87).

166. In a communication dated 23 August 2001, the Government indicates that sections 11 and 16 of the Trade Unions Act are in the process of being amended and that the drafting process will take into account the conclusions of the ILO technical assistance mission which was undertaken in April 2001.

167. The Committee notes with interest the Government's statement that the proposed amendments to the Trade Unions Act will take into account the conclusions of the ILO technical assistance mission. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the proposed amendments to sections 11 and 16 of the Trade Unions Act.

Case No. 2075 (Ukraine)

168. The Committee last examined this case at its June 2001 meeting when it requested the Government to engage immediately in discussions with the All-Ukrainian Trade Union "Solidarnost" with a view to establishing the date 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 also called upon the Government to take the necessary measures to ensure the reactivation of the union's bank account (see 325th Report, paras. 89-91).

169. In its communication of 23 August 2001, the Government indicates that with regard to the refusal by the Ministry of Justice to register the All-Ukrainian Trade Union "Solidarnost", it had previously informed the Committee that an appeal was lodged by the union against the ruling given on 6 April 2000 by the Supreme Court of Arbitration (VASU). The appeal was heard by the arbitration college responsible for reviewing decisions and rulings of the VASU. On 25 July 2000, the arbitration college ruled that the original ruling of 6 April 2000 should stand. A protect was lodged with the VASU Presidium against the arbitration college ruling. The Presidium also ruled that the original VASU ruling of 6 April should stand, because the court had examined all the circumstances of the case and correctly assessed all the available evidence.

170. The Committee takes note of this information. It notes with regret that the Government merely reiterates the information it had previously provided and that even if the complaint was lodged in March 2000, the complainant organization has still not been able to obtain its registration. It once again urges the Government to engage actively in discussions with the All-Ukrainian Trade Union "Solidarnost" with a view to establishing the date necessary for its registration. It once again requests the Government to keep it informed of the measures effectively taken to ensure the registration of the complainant organization as well as the measures taken concerning the reactivation of the union's bank account.

Case No. 1937 (Zimbabwe)

171. The Committee last examined this case at its meeting in November 2000 when it once again urged the Government to amend sections 98, 99, 100, 106 and 107 of the Labour Relations Act so as to ensure that compulsory arbitration may only be imposed with respect to essential services and in cases of acute national crisis. Furthermore, the Committee urged the Government to take the necessary measures to ensure that the workers dismissed from the Standard Chartered Bank were reinstated pending the conclusions of the disciplinary committee, reconstituted by the Supreme Court judgement, and trusted that the disciplinary committee would bear in mind the principles of freedom of association so that all those workers who were dismissed for the exercise of legitimate trade union activity would be fully reinstated in their jobs as soon as possible without loss of salary or benefits (see 323rd Report, paras. 106-111).

172. In a communication dated 28 August 2001, the Government indicates that this case has been amicably settled between the bank and its employees. Following the Supreme Court judgement ordering a new disciplinary committee, the parties engaged in protracted negotiations and a settlement was reached and signed by the bank and the workers' representatives. According to the Government, the bank established an independent administered trust fund for the former employees who have individually and collectively confirmed their satisfaction with the outcome of the dispute. As concerns the legislative changes recommended by the Committee, the Government states that these are being taken care of by the labour amendments processes.

173. The Committee notes with interest that a settlement agreement has been reached between the Standard Chartered Bank and the workers' representatives, to the collective and individual satisfaction of the workers who were dismissed over four years ago. As concerns its recommendations of a legislative nature, the Committee once again recalls the need to amend the provisions of the Labour Relations Act which provide for compulsory arbitration and the availability of ILO technical assistance in this regard. The Committee requests the Government to keep it informed of any progress made in amending the Labour Relations Act and to transmit a copy of any draft legislation in this respect. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

Case No. 2027 (Zimbabwe)

174. The Committee last examined this case at its March 2000 session and on that occasion requested the Government to: (1) take the necessary measures for a complete independent judicial inquiry to be carried out into the assault on Morgan Tsvangirai in order to determine those responsible and punish the guilty parties; (2) take the necessary measures to institute an independent investigation into the arson of the ZCTU offices; (3) provide a copy of the High Court judgement concerning the case brought by the CZTU concerning the temporary ban on industrial action issued in November 1998; (4) to keep it informed of the status of the Labour Relations Amendment Bill of 1999.

175. In its communication dated 30 August 2001, the Government indicates that concerning the case of Mr. Tsvangirai, the alleged assailant was brought before the courts of law and the magistrate acquitted the alleged assailant on the grounds of lack of adequate evidence to sustain the prosecution and conviction. Given the manner in which the assault was perpetrated, the Government had difficulty in establishing a judiciary inquiry as common assaults are not unusual in urban areas. The Government states that the courts are competent enough to deal with the issues of common assault and hence stand by the court's judgment which has already been communicated to the ILO.

176. The Committee takes note of this information. Concerning the case of Mr. Tsvangirai, while noting the Government's position, the Committee must recall that the rights of workers' and employees' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of the organizations, and it is for governments to ensure that this principle is respected. Moreover, a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty and the Government has the undeniable duty to promote and defend a social climate where respect of the law reigns as the only way of guaranteeing respect for and protection of individuals. The Committee requests the Government to establish a thorough and independent inquiry into this matter. With regard to the other issues concerning this case, the Committee regrets that the Government has not provided any information and requests it to keep it informed on all the pending issues related to this case.

Case No. 2081 (Zimbabwe)

177. The Committee last examined this case at its November 2000 session (see 323rd Report, paras. 555-575) and on that occasion requested the Government: (1) to take the necessary measures to ensure that section 120(2) of the Labour Relations Act of 1985 is amended in line with freedom of association principles, and (2) to take the necessary measures to stop forthwith the ongoing investigations by a government-appointed investigator into the financial affairs of the Zimbabwe Congress of Trade Unions (ZCTU).

178. In its communication dated 30 August 2001, the Government indicates that both the ZCTU and the Employers' Confederation of Zimbabwe (EMCOZ) have made representation to the Parliamentary Portfolio Committee for it to consider the amendment of section 120(2) of the Labour Relations Act. The Government underlines the possibility for parliamentarians to lobby for the amendment of the section in the ongoing labour legislation amendments. Concerning the investigations into the financial affairs of the ZCTU, the Government explains that these investigations had been completed by the time the Committee had requested it to stop the investigations but the Government took due note that such investigations should be carried out by an investigator independent of the administrative authorities.

179. The Committee takes note of this information. It requests the Government to continue to keep it informed of any measures taken to amend section 120(2) of the Labour Relations Act of 1985.

180. Finally, as regards Cases Nos. 1618 (United Kingdom), 1813 (Peru), 1843 (Sudan), 1851 (Djibouti), 1922 (Djibouti), 1953 (Argentina), 1959 (United Kingdom/Bermuda), 1978 (Gabon), 1992 (Brazil), 2012 (Russian Federation), 2022 (New Zealand), 2031 (China), 2037 (Argentina), 2042 (Djibouti), 2049 (Peru), 2052 (Haiti), 2053 (Bosnia and Herzegovina), 2058 (Venezuela), 2059 (Peru), 2065 (Argentina), 2072 (Haiti) and 2100 (Honduras), 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 Case No. 2009 (Mauritius), the Committee requests the Government to reply to the communications transmitted by the complainants. In addition, the Committee has just received information concerning Cases Nos. 1581 (Thailand), 1877 (Morocco), 1952 (Venezuela), 1957 (Bulgaria), 1975 (Canada/Ontario), 1991 (Japan), 2014 (Uruguay), 2048 (Morocco), 2051 (Colombia), 2083 (Canada/New Brunswick), 2106 (Mauritius) and 2110 (Cyprus), which it will examine at its next meeting.

Endnotes