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 7, 8 and 15 November 2002, under the chairmanship of Professor Paul van der Heijden.

2. The member of Salvadorean nationality was not present during the examination of the case relating to El Salvador (Case No. 2190).

3. Currently, there are 102 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 31 cases on the merits, reaching definitive conclusions in 20 cases and interim conclusions in 11 cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 2209 (Uruguay), 2211 (Peru), 2213 (Colombia), 2214 (El Salvador), 2215 (Chile), 2216 (Russian Federation), 2217 (Chile), 2218 (Chile), 2219 (Argentina), 2220 (Kenya), 2221 (Argentina), 2222 (Cambodia), 2223 (Argentina), 2224 (Argentina), 2225 (Bosnia and Herzegovina), 2226 (Colombia), 2227 (United States), 2228 (India) and 2229 (Pakistan), since 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. 1865 (Republic of Korea), 2087 (Uruguay), 2127 (Bahamas), 2132 (Madagascar), 2158 (India), 2161 (Venezuela), 2164 (Morocco), 2185 (Russian Federation), 2186 (China), 2187 (Guyana), 2192 (Togo), 2193 (France), 2194 (Guatemala), 2199 (Russian Federation) and 2200 (Turkey).

Partial information received from governments

6. In Cases Nos. 2046 (Colombia), 2088 (Venezuela), 2096 (Pakistan), 2103 (Guatemala), 2111 (Peru), 2138 (Ecuador), 2151 (Colombia), 2169 (Pakistan), 2179 (Guatemala), 2203 (Guatemala), 2204 (Argentina) and 2206 (Nicaragua), the governments have sent partial information on the allegations made. The Committee requests all these governments to send the remaining information without delay so that it can examine these cases in full knowledge of the facts.

Observations received from governments

7. As regards Cases Nos. 1888 (Ethiopia), 1986 (Venezuela), 2105 (Paraguay), 2134 (Panama), 2166 (Canada), 2170 (Iceland), 2171 (Sweden), 2173 (Canada), 2178 (Denmark), 2180 (Canada), 2182 (Canada), 2189 (China), 2191 (Venezuela), 2196 (Canada), 2197 (South Africa), 2207 (Mexico), 2208 (El Salvador), 2210 (Spain) and 2212 (Greece), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Withdrawal of a complaint

8. As regards Case No. 2202 (Venezuela), the complainant organization, the Latin-American Central of Workers (CLAT) has withdrawn its complaint given that the draft legislation (the subject of the complaint) was abandoned.

Urgent appeals

9. As regards Cases Nos. 2130 (Argentina), 2144 (Georgia), 2162 (Peru) and 2168 (Argentina), 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.

Non-receivable complaint

10. The Committee decided to declare the complaint submitted by the Petroleum Workers Union of Mexico (STPRM), dated 5 July 2002, not receivable as it does not refer to matters linked to freedom of association.

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

11. The Committee once again considers it necessary to draw the Governing Body's special attention to Cases Nos. 1787 (Colombia), 2090 (Belarus), 2154 (Venezuela), 2184 (Zimbabwe) and 2201 (Ecuador) because of the extreme seriousness and urgency of the matters dealt with therein.

Transmission of cases to the Committee of Experts

12. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Honduras (Case No. 2100), The former Yugoslav Republic of Macedonia (Case No. 2133), Bosnia and Herzegovina (Case No. 2140) and Japan (Cases Nos. 2177 and 2183).

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

Case No. 1992 (Brazil)

13. The Committee last examined this case, concerning dismissals following a strike and other anti-union acts, at its March 2002 meeting (see 327th Report, paras. 27-29). On that occasion, it requested the Government to inform it of the final outcome of the remaining judicial proceedings.

14. In a communication dated 29 May 2002, the Government states that another four workers have been reinstated.

15. The Committee notes this information with interest and requests the Government to inform it of the final outcome of the remaining judicial proceedings.

Case No. 2156 (Brazil)

16. The Committee last examined this case at its March 2002 meeting (see 327th Report, paras. 198-203). On that occasion, the Committee deeply deplored the murder of the trade union leader Carlos Alberto Santos and urged the Government to ensure that the investigations to clarify the facts and determine those responsible were concluded rapidly so that anyone having participated in this murder, including the perpetrators, were punished as required by law. The Committee also requested the Government to keep it informed of developments in the legal proceedings.

17. In a communication dated 29 May 2002, the Government states that the Ministry of Labour and Employment, based on information from the Ministry's Regional Unit in the State of Sergipe, informed it that the police investigation opened in that State to clarify the facts and determine those responsible was concluded on 15 May 2002, and led to the discovery of two unidentified bodies, which could be those of the trade unionist's murderers, although there was not enough evidence yet to reach such a conclusion. The Government states further that a special task force has been set up at state level, composed of officers of the federal police and the civil police, with responsibility for carrying out an in-depth inquiry. The eyewitnesses of the crime are under maximum protection.

18. The Committee notes this information and requests the Government to keep it informed of the results of the investigations opened and the corresponding legal proceedings aimed at ensuring that those responsible for the murder of Mr. Carlos Alberto Santos are promptly punished.

Case No. 1957 (Bulgaria)

19. The Committee last examined this case, which concerns the eviction of trade union premises and confiscation of trade union property of the National Syndical Federation (GMH), at its March 2002 meeting (327th Report, paras. 30-32). On that occasion, the Committee recalled that this case, which dates back to March 1998, involved very serious allegations of freedom of association principles, i.e. acts by the authorities which make it extremely difficult, if not impossible, for a trade union to function normally. The Committee once again requested the Government to initiate, as soon as possible, discussions with the complainant organization in order to settle the issues of trade union premises and confiscation of trade union property of the GMH.

20. In a communication dated 11 September 2002, the Ministry of Labour and Social Policy recalls that the premises on 8 Christo Belchev St. was given to the management of the Ministry of Commerce/present Ministry of Economy. It indicates that it has once again sent a letter to the Ministry of Economy, asking for assistance in finding a solution to this case. The Government also indicates that other existing and unsettled property issues such as unpaid rent to the Ministry constitute obstacles for the settlement of the present case.

21. The Committee notes this information. It regrets that more than three years after the filing of the complaint, the Government has not settled the issues of trade union premises and confiscation of trade union property of the GMH. The Committee once again urges the Government to hold, without delay, discussions with the complainant organization with a view to settling the pending issues, and requests to be kept informed of developments.

Case No. 1989 (Bulgaria)

22. The Committee last examined this case at its meeting in November 2001, when it once again requested 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 (see 326th Report, paras. 24-26).

23. In a communication dated 11 September 2002, the Government indicates that a meeting was held between the Ministry of Labour and Social Policy and the President of TUEPB, Mr. Yordan Manolov, where the wish of both sides for the implementation of the independent commission was reconfirmed. The Government states that following this meeting, both partners agreed that the representatives of the employers' and employees' organizations and the States, represented by the Ministry of Labour and Social Policy, would be invited to participate in the independent commission. They also agreed that the host of the first session would be the Ministry of Labour and Social Policy.

24. The Committee takes note of this information with interest. The Committee trusts that the Government will take steps without delay to ensure that the first session of the independent commission takes place.

Case No. 2047 (Bulgaria)

25. The Committee last examined this case at its meeting in November 2001. On that occasion, it urged the Government to take the necessary measures rapidly in order to conduct a poll to determine whether PROMYANA and the Association of Democratic Syndicates (ADS) did meet the necessary requirements to establish representativeness for participation in the National Tripartite Council. It further requested the Government to keep it informed of the progress made in this respect (see 326th Report, paras. 27-30).

26. In a communication dated 11 September 2002, the Government states that a draft law on amendments and supplements to the Labour Code, including a part that concerns the representativeness of the workers' organizations, has been submitted to the National Assembly. The Government indicates that, following the adoption of these amendments, secondary legislation will shortly be elaborated, which will regulate the order of establishment of available criteria for representativeness of employers' and employees' organizations at national level, under which each workers' organization will be able to apply for representativeness.

27. The Committee takes due note of this information. It asks the Government to provide it with a copy of the amendments to the Labour Code as soon as they have been adopted by the National Assembly. It also requests the Government to keep it informed of developments regarding the new legislation which will regulate the criteria for representativeness of workers and employers' organizations at the national level.

Case No. 1995 (Cameroon)

28. The Committee last examined this case at its meeting in March 2002 (see 327th Report, paras. 204-213). On that occasion, the Committee recalled that the complaint had originally been set out in a communication sent in October 1998, and urged the Government to take all the necessary measures to ensure that Mr. Olongo, formerly a staff delegate at SONEL dismissed in 1988, receive full compensation, given that the 14 years that had elapsed since his dismissal made reinstatement difficult. The Committee requested the Government to keep it informed in this respect.

29. In a communication dated 4 July 2002, the Government states that there has been no progress in the judicial procedures concerning Mr. Olongo's case, and that a letter of reminder has been sent to the Minister of Justice asking him to instruct the Supreme Court to give a definitive ruling.

30. The Committee notes this information. It once again regrets that, more than two years after the first examination of the case and 14 years after the dismissal of Mr. Olongo, he has still not been reinstated or received compensation. The Committee recalls that justice delayed is justice denied, and expresses the strong hope that the Government will in the near future be able to report a positive outcome of proceedings currently under way before the Supreme Court. The Committee requests the Government to inform it of the Supreme Court's decision once it has been handed down, and to keep it informed of developments in the matter of compensation for Mr. Olongo.

Case No. 2141 (Chile)

31. At its June 2002 meeting, the Committee formulated the following recommendations on the issues still pending (see 328th Report, para. 20):

The Committee requests the Government to keep it informed of the outcome of the judicial proceedings under way concerning the death the Mr. Luis Lagos and the serious injuries sustained by Mr. Donaldo Zamora during the strike held in the FABISA enterprise in May 2001. Moreover, the Committee deeply regrets that the FABISA enterprise has failed to respect the agreement to review the dismissals of 23 workers following the strike. In this respect, the Committee requests the Government to carry out an investigation concerning these dismissals and, if it is found that the workers were dismissed for exercising their trade union activities, to take the necessary measures within its power to ensure that they are reinstated. The Committee requests the Government to keep it informed in this regard.

32. In its communication of 3 September 2002, the Government states that the criminal proceedings concerning the death of Mr. Luis Lagos and the serious injuries sustained by Mr. Donaldo Zamora are presently being judged since the prosecution was filed on 4 July 2002. The period of time granted to the complainants to contest the transfer has not yet expired. At the same time, the Court entered a temporary and partial non-suit for the alleged homicide of Mr. Lagos and the alleged attempted homicide of the seriously injured worker, in favour of Mr. Hernández, an executive from the FABISA enterprise. Both decisions to enter a non-suit were appealed by the complainants and the Court of Second Instance is now processing these appeals. The only complainants in this case are the relatives of the victims.

33. As regards the situation of the 23 workers dismissed following the strike, during the collective bargaining process, the Government states that the 18 workers dismissed shortly after the strike was concluded went to the tribunal to request legal compensation for unfair dismissal. With regard to the other five workers who were later dismissed, they came to an agreement with the employer for the payment of compensation according to their years of service and signed the corresponding final discharges, thereby terminating their working relationship.

34. The Committee notes this information. The Committee requests the Government to keep it informed of the outcome of the legal proceedings concerning the death of Mr. Luis Lagos and the serious injuries sustained by Mr. Donaldo Zamora during the strike held at the FABISA enterprise in May 2001. The Committee also requests the Government to keep it informed of the sentence handed down by the judicial authority concerning the dismissal of 18 workers following the conclusion of the said strike.

Case No. 2104 (Costa Rica)

35. The Committee last examined this case concerning restrictions of the right of collective bargaining in the public sector and unfair labour practices in the education sector at its March 2002 meeting (see 327th Report, paras. 507-524). On this occasion, the Committee made the following conclusions and recommendations:

- The Committee expresses its deep concern at the situation with regard to the right of collective bargaining in the public sector, which constitutes a serious violation of Convention No. 98 and trusts that this situation may be resolved once the Legislative Assembly ratifies Conventions Nos. 151 and 154.

- As regards the allegations of anti-union discrimination by the University of Costa Rica, the Committee notes with interest the Government's statements to the effect that the anti-union actions in question (dismissal procedure against trade union official Mr. Luis Enrique Chacón Solano, pay cuts, blacklists with threats of pay cuts, etc.) have been remedied, and that the University authorities have been urged in future to refrain from taking action of that type. Taking into account the fact that an appeal may be lodged against the administrative resolution confirming the existence of these unfair practices, the Committee requests the Government to keep it informed of any appeal that may be lodged and any new decision.

- The Committee requests the Government to keep it informed of the outcome of the complaint lodged by the administrative authorities to the courts after confirming that the Ministry of Education had committed violations in the matter of trade union leave.

(Specifically, the complainant organization had supplied a copy of a resolution by the administrative authorities dated 7 November 2001, which confirmed certain actions by the Ministry of Education with regard to trade union leave that violated the principles of ILO Conventions Nos. 87, 98 and 135.)

36. In a communication dated 3 June 2002, the complainant organization (SINDEU) states that the trade union official Mr. Luis Enrique Chacón was dismissed in spite of previous resolutions by the administrative authorities that provided this official with protection.

37. In a communication dated 17 May 2002, the Government sends a copy of draft law No. 14730, concerning the reform of article 192 of the Political Constitution to guarantee collective bargaining in the public sector, which went before the legislative plenary on 10 May 2002. The explanatory preamble of the draft law refers to the conclusions of the ILO technical assistance mission that visited the country recently and recognizes that "obviously the prevailing legal uncertainty has greatly hindered legal and constitutional performance, and has moreover given rise to excessive constraint of the right to collective bargaining". The Government hopes that this plenary session will approve the draft law, which will allow ratification of Conventions Nos. 151 and 154. The new article will allow the granting of the right to collective bargaining in the public sector to public employees who are governed by the statute of civil servants and carry out public administration as representatives of the public authorities (upper-level management employees in public administration, such as members of executive boards of institutions, executive presidents, managers and heads of diplomatic missions; high-level supervisory employees for public finance, such as auditors, sub-auditors and the Comptroller-General of the Republic; employees in positions of trust, the Attorney-General of the Republic, the Council for Public Defence and employees of similar nature). This constitutional reform will be implemented under ordinary law. Moreover, the Government repeats that it has submitted to the Legislative Assembly draft laws for the ratification of Conventions Nos. 151 and 154 concerning collective bargaining in the public sector.

38. The Committee notes with interest the Government's intention to adapt its legislation to the ILO standards relating to collective bargaining and the steps it has taken to do so, which include a constitutional reform (which has been submitted to the legislative plenary) and the submission of draft legislation for the ratification of Conventions Nos. 151 and 154. The Committee hopes that progress will be made in the near future and requests the Government to keep it informed in this respect.

39. With regard to the other two recommendations made at its previous meeting, the Committee notes that the Government has not sent the information requested of it and therefore the Committee repeats these requests, that the Government:

- with regard to the matter of unfair labour practices at the University of Costa Rica noted by the administrative authorities, keep it informed of any appeal and any new decision;

- keep it informed of the outcome of the complaint lodged by the administrative authorities to the courts after confirming that the Ministry of Education had committed violations in the matter of trade union leave.

40. Finally, the Committee requests the Government to send its observations on the dismissal of the trade union official, Mr. Luis Enrique Chacón.

Cases Nos. 1987 and 2085 (El Salvador)

41. At its May-June 2002 meeting, the Committee requested the Government to keep it informed of the results of the request of registration presented by the Trade Union Federation of Salvadorian Workers of the Food, Beverage, Restaurants, Hotels and Food Sectors (FESTSSABHRA) and hoped that this federation would rapidly be granted legal personality. It also requested the Government to take the necessary measures to amend the legislation on various points (see 328th Report, paras. 44-47).

42. In a communication dated 6 June 2002, the FESTSSABHRA states that after having given up its previous name, FESTSA, it once again requested registration of legal personality.

43. In a communication dated 8 July 2002, the Government states that on 27 May 2002 the FESTSSABHRA submitted to the General Labour Directorate the documentation relating to its establishment in order to obtain legal personality. The following were involved in establishing this federation: the Trade Union of the Lido Enterprise Ltd., the Confectionary Workers' Industrial Trade Union, the Workers' Trade Union of the Foremost Dairy Products Enterprises Ltd., the Workers' Trade Union of Nestlé Ltd., El Salvador, and the Workers' Trade Union of Salinitas Club Ltd. On 1 July 2002, the Secretariat of Labour and Social Protection approved the constitution of the federation and ordered that it be published in the Official Bulletin along with the resolution granting legal personality.

44. The Committee is pleased to note that the FESTSSABHRA has been granted legal personality. However, the Committee notes that the Government has sent no new information with regard to the changes to trade union legislation on the points mentioned in previous examinations of the case. The Committee therefore repeats its previous recommendations and requests the Government to take the necessary measures to amend the legislation on the following points in order to bring it into conformity with freedom of association principles: the reform of the Labour Code provisions setting out excessive formalities for recognition of trade unions and acquisition of legal personality contrary to the principle of free establishment of trade union organizations (requirement that 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 (requirement to wait for six months before applying for recognition of a new trade union when a first request is rejected), and measures taken to amend the national legislation so that it would recognize the right of association of state workers, with the sole possible exception of the armed forces and police, in conformity with freedom of association principles. The Committee requests the Government to keep it informed in this respect.

Case No. 1978 (Gabon)

45. The Committee last examined this case, which concerns the existence and free functioning of trade union structures of the Gabonese Confederation of Free Trade Unions (CGSL) in the SOCOFI enterprise and the dismissal of trade unionists for exercising their right to strike, at its March 2002 meeting (see 327th Report, paras. 58-60). On that occasion, the Committee requested the Government to keep it informed of the decision of the Court of Appeal on the legality of the strike launched by the CGSL at the SOCOFI enterprise in 1997.

46. In its communication of 11 September 2002, the Government merely provides some information on issues that are no longer pending in this case, and fails to provide any information concerning the decision of the Court of Appeal on the legality of the 1997 strike at the SOCOFI enterprise.

47. The Committee notes with regret that no new information on the pending issue in this case has been provided by the Government. Therefore, the Committee can only deplore, once again, the fact that more than five years after the strike was launched at the SOCOFI enterprise, the workers who were dismissed for involvement in the strike are still waiting for the Court's decision. The Committee once again urges the Government to take the necessary measures - if the strike is ruled to have been lawful - to ensure that the workers dismissed for exercising the right to strike are reinstated in their posts without loss of pay or, if this is not possible, that they be compensated. Furthermore, the Committee reminds the Government that justice delayed is justice denied.

Case No. 1970 (Guatemala)

48. The Committee last examined this case concerning murders and dismissals at its March 2002 meeting (see 327th Report, paras. 61-66). On that occasion it made the following recommendations on the issues still pending:

- The Committee once again requests the complainant to send further information with regard to the murder of Cesáreo Chanchavac.

- The Committee notes 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 hopes that the rulings relating to the dismissals are handed down and that the negotiation of a collective agreement at the San Carlos Miramar farm make progress in the near future and requests the Government to keep it informed in this respect.

49. In its communications dated 20 and 27 September 2002, the Government states that Guatemalan workers currently have a special public prosecutor's office which deals with allegations relating to murders and death threats resulting from their union activity. It also points out that it is difficult to provide satisfactory information because some complaints date from a long time ago. The Government also supplies information on a series of acts of violence, which are not contained in the allegations.

50. The Committee notes once again that the complainant organization has not sent further information concerning the murder of the trade union member Cesáreo Chanchavac. The Committee once again requests the complainants to send further information in respect of this murder. As regards the proceedings concerning dismissals at the Ofelia, La Patria, Santa Fe and La Palmera farms, the alleged dismissals at the El Arco farm and the alleged impossibility of negotiating a collective agreement at the San Carlos Miramar farm, the Committee notes with regret that the Government has not sent any observations in this respect. The Committee once again requests the Government to keep it informed on the rulings that are handed down in relation to these dismissals and to promote the negotiation of a collective agreement at the San Carlos Miramar farm.

Cases Nos. 2017 and 2050 (Guatemala)

51. The Committee examined these cases at its meeting in March 2002 and made the following recommendations on the allegations that remained pending (see 327th Report, para. 604):

- regarding the Tanport S.A. company, the Committee hopes that the existing discrimination will be ended without delay and requests the Government to inform it of the result of the legal proceedings undertaken to protect the money owed to the UNSITRAGUA members who were dismissed because of the company's closure;

- as regards the Ace International S.A. assembly plant, the Committee requests the Government urgently to communicate the court resolutions handed down on the serious allegations submitted of discrimination and intimidation;

- as regards the closure of Cardiz S.A., the Committee expresses the hope that the judicial authority will pronounce on this case without delay and requests the Government to keep it informed of developments in that regard. It also requests the Government to ensure that no worker be detained for anti-union reasons;

- the Committee requests the Government to indicate the legal grounds for the cancellation of the registration of all of the officers of the trade union at María de Lourdes de Génova Farm and emphasizes that it would have been appropriate to retain all of the trade union officers except the farm administrator;

- as regards the allegations relating to the death threats against the secretary-general of the union at the María de Lourdes de Génova Farm, Mr. Otto Rolando Sacuqui García, the threats made against the union's secretary for the settlement of disputes, Mr. Walter Oswaldo Apen Ruiz, and his family, to force him to relinquish his post in the municipality of Tecún Umán, and the dismissal of the founders of the trade union at Hidrotecnica S.A., established in 1997, the Committee:

- - urges the Government to organize without delay an investigation into these allegations and keep it informed of developments;

- - notes that the necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a trade union are reinstated in their functions, if they so wish; and

- - urges the Government promptly to take the necessary measures to guarantee the trade unionists' physical safety;

- as regards the allegations relating to the death threats received by members of the Workers' Union of Banana Plantations of Izabal (SITRABI), the threats by the Bandegua company to leave the country if the workers do not agree to a reduction of their rights under the collective agreement, the dismissals threatened and carried out by that company (25 dismissals at five farms), and the raid on the premises of the Trade Union of Electricity Workers of Guatemala, with destruction and theft of property, the Committee requests the Government:

- - urgently to take the necessary measures to protect the security of the threatened trade unionists, place the cases of the alleged death threats and raid before the Attorney-General without delay and keep it informed of the penal sanctions applied;

- - to ensure that anti-union dismissals do not take place and investigate the motives for the dismissals that have occurred; and

- - to ensure respect for the collective agreement and keep it informed of developments in the situation;

- as regards the other serious allegations that remain pending, the Committee strongly reiterates its recommendation that the Government should:

- - as a matter of urgency take steps to carry out a judicial investigation into the death threats made against the trade unionist José Luis Mendía Flores, ensure that he has been reinstated in his post in accordance with the court resolution, and keep the Committee informed in this regard;

- - ensure compliance with the court orders to reinstate the workers dismissed at the company La Exacta and send its observations promptly on the alleged delays in the investigation into the murders in 1994 of four rural workers (see the names below, in the second communication of UNCITRAGUA) who had tried to form a trade union, and keep the Committee informed of the results of the judicial proceedings under way in respect of these murders; and

- - take the necessary measures (legislative and other) to ensure that the reinstatement orders are complied with;

- as regards the recent allegation concerning the murder of a trade union official, Mr. Baudillo Armado Cermeño Ramírez, the Committee requests the Government to ensure that the appropriate independent judicial investigations are conducted as soon as possible in order to establish the facts and circumstances of the incident, define responsibilities, punish the perpetrators and thus avoid a repetition of such occurrences and requests the Government to keep it informed in this regard.

52. In its communication dated 5 March 2002, CIOSL alleges that Mr. Miguel Angel Ochoa González, leader of the Union of Professional Pilots and Road Freight Haulage, was kidnapped by three persons on 14 February 2002. He was physically and verbally abused and then abandoned. It also alleges that Mr. Ochoa, together with Mr. Wilson Armelio Carreto López, received death threats in a letter on 15 February 2002.

53. In its communication dated 1 April 2002, UNSITRAGUA states that, in violation of a court ruling, the Banco de Crédito Hipotecario Nacional, a state-owned bank, dismissed 170 workers without obtaining legal dispensation. In its communication dated 7 May 2002, UNSITRAGUA states that 90 of the bank's workers have availed themselves of a retirement plan. Moreover, after more than three years, the Conciliation Tribunal has still not pronounced (nor called the parties to a hearing) on the collective labour dispute that began on 5 August 1997. In a communication received by the ILO on 3 June 2002, UNSITRAGUA states that up to 200 workers have now been dismissed, despite the relevant court ruling, and that more workers are under pressure to renounce their contracts and claim unemployment benefits. In addition, on 22 March the bank suspended trade union officials' permits and is conducting surveillance on the officials and persecuting them. In its communication dated 29 July 2002, UNSITRAGUA complains that a further 100 workers were dismissed by the bank on 27 July, despite the relevant court ruling and other rulings by the labour inspectorate. The trade union officials' permits were suspended once more on 26 July.

54. In its communication dated 3 June 2002, UNSITRAGUA reports that the legal authorities have still not pronounced on the case of the Tanport S.A. assembly plant and that, in the case of the Ace International S.A. assembly plant, the Constitutional Court upheld the sentence of the Supreme Court of Justice, violating freedom of association and opening the doors to the fraudulent dissolution of enterprises as a means of breaking up trade unions. UNSITRAGUA also explains that, in 1994, the police evacuation of a peaceful sit-in at the San Juan del Horizonte farm (operated by the Exacta company) led to the killing of three trade unionists, Efraín Recinos, Basilio Guzmán and Diego Orozco; a further 11 workers were injured and 45 were arrested; and the trade unionist José García González was kidnapped and murdered. There has still been no judicial investigation. The company also dismissed 60 workers, who have not been reinstated despite a court ruling.

55. In its communication of May 2002, the CUSG points out that many dismissals of trade unionists took place in the María de Lourdes farm, the Hidrotécnica company, the municipality of Jalapa and the municipality of Tecpán and that the dismissed have not been reinstated despite judicial rulings ordering reintegration. In the case of the municipality of Tecpán, the Supreme Court ruled in the final instance in favour of the workers and imposed a fine on the municipality. In the municipality of Jalapa, the collective agreement has been violated. The municipality has refused to comply with recommendations of the Ministry of Labour on the violations of the collective agreement. In the municipality of Malacatán, the collective agreement was also violated. The Parque Zoológico Nacional La Aurora refused to negotiate a new collective agreement with the union and has promoted a solidarist association putting pressure on workers to affiliate with it.

56. In its communications of 3 July 2002 and 27 September 2002, the Government reports that although the case of the Banco de Crédito Hipotecario Nacional has been brought before justice, the labour inspectorate is simultaneously favouring high level meetings in order to find a solution in favour of the workers. Also, on 25 April 2002, conciliation was achieved on one of the points of conflict (the question of suspension of trade union permits) thanks to the mediation of the Minister of Labour; moreover, three administrative punitive inquiries are under way in order to impose fines on the bank. Concerning the company "Ace International", the issue is before justice and the company remains closed. The assembly plant Tanport is also closed. The labour inspection tried to obtain compliance with the judicial order which has pronounced on this case but it did not manage to locate the headquarters of the enterprise. With respect to these last two cases, the Government reports that it has created a tripartite National Assembly Plant Authority, in order to improve social and labour relations in this sector and find solutions to cases like the ones mentioned above. The threats against the trade union official, Miguel Angel Ochoa Gonzáles, are being examined by the authorities.

57. In its communication of 27 September 2002, the Government sent observations on the María de Lourdes farm, the Hidrotéchnica company and the municipality of Jalapa, but without referring specifically to the questions pending before the Committee. The Government adds that the Ministry of Labour made a mediation effort and that judicial ruling was pronounced in the case of the Tecpán municipality (favourable to the union according to the complainant organization). Concerning the case SITRABI, the incidents continue to be examined by the criminal justice system and the Minister of Labour continues to hold meetings with the parties in order to achieve positive results. Concerning the case of the La Exacta farm, a declaration has been signed in which the responsibility of the authorities in the events which took place is implicitly recognized. This case is examined in the context of the judicial system. Concerning the Parque Zoológico Nacional La Aurora, this case was examined by the labour inspectorate and within the tripartite committee on international labour issues. The case of the municipality of Malacatán was favourably resolved.

58. The Committee takes note of the Government's observations. The Committee underlines the gravity of the questions raised in the allegations, in particular with regard to acts of violence (assassinations, aggressions, threats) and anti-trade union discrimination (including cases of non-compliance with judicial orders) and expresses its profound preoccupation in this respect.

59. The Committee notes that according to the Government, the threats against the trade union official, Miguel Angel Ochoa González, are being examined by the authorities. The Committee regrets that the Government was not sent observations on allegations relative to (1) the judicial rulings concerning the Cordiz S.A. company; (2) the kidnapping, aggressions and threats against the trade unionist of the María de Lourdes farm, Walter Oswaldo Apen Ruiz and his family, and the death threats against the trade union officials Roland Sacuqui García, Wilson Armelio Larreto López and José Luis Mendía Flores; (3) the assassination of the trade unionists of the La Exacto Farm Efrain Recinos, Basilio Guzmán and Diego Orozco, the injury of 11 workers and the detention of 45 workers from this farm; (4) the assassination of the trade unionist, José García González, and the trade union Leader, Bandillo Amado Cermeño; (5) the raid against the Luz and Fuerza union. The Committee requests the Government to send its observations on these allegations and to indicate the state of the respective proceedings. The Committee deplores these acts of violence against trade unionists, expresses its great preoccupation before this situation and points out to the Government that a free and independent trade union movement can only develop in a climate free from violence, threats and intimidation. The Committee requests the Government to guarantee security to all threatened trade unionists who have been mentioned in this case.

60. Concerning the conflict relative to Banco de Crédito Hipotecario Nacional, the Committee notes that a negotiating committee has been set-up on all the questions before the authorities (negotiation of a new collective agreement, massive dismissals, etc.) and observes that at first, the suspension of trade union permits was resolved but that the complainant organization has come back with allegations that the permits were suspended once more on 26 July 2002. The Committee observes that the conflict was brought before justice. The Committee insists on the importance of respecting judicial rulings which prohibit dismissals without legal authorization, hopes that the negotiating Committee will be able to find a solution to the conflict in a short period of time and requests the Government to keep it informed of the progress of the Committee. The Committee requests the Government to communicate any ruling on these allegations.

61. The Committee observes that the Government has sent insufficient or imprecise information on other pending questions: cases of SITRABI, María de Lourdes farm, Hidrotéchnica company, Jalapa municipality (violation of the collective agreement), and Parque Zoológical Nacional. The Committee requests the Government to send additional information on these allegations. The Committee requests the Government to confirm that the trade unionist, José Luis Mendía Flores, has been reinstated in his post as ordered by the judicial authority.

62. The Committee observes that other cases (pending during the latest examination of the case) have been brought before justice (Ace Internacional company, Tanport company, La Exacta farm). The Committee reiterates its previous recommendations on these questions and asks the Government to send additional information. The Committee notes that according to the Government, the case of the municipality of Malacatán has been resolved.

63. The Committee regrets to observe that in this as well as previous cases, the complainant organizations have highlighted the non-compliance with judicial rulings ordering reinstatement. The Committee requests the Government to ensure the reintegration of all the trade unionists who have not yet been reinstated in their posts in various companies and farms mentioned in this case, despite judicial orders which have been pronounced in this sense and to keep it informed in this respect.

Case No. 2100 (Honduras)

64. The Committee last examined this case, concerning the refusal to grant workers the right to organize trade unions of their own choosing without previous authorization and the obstruction of trade union pluralism, at its June 2001 meeting (see 325th Report, paras. 414-432). On that occasion, the Committee requested the Government to take into account that the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of these trade unions, and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union. The Committee also requested the Government to amend its legislation to bring it into conformity with Conventions Nos. 87 and 98, and to guarantee that workers had the right to establish and join the organizations of their own choosing. Lastly, it requested the Government, considering the foregoing, to inform it of any new requests submitted by SITRAIMASH for legal personality.

65. In its communication of 2 September 2002, the Government indicates that it will take the recommendations formulated by the Committee concerning this case into account once the Labour Code has been amended according to a tripartite procedure. Furthermore, it states that although the current labour legislation still has some shortcomings, all workers and employers enjoy freedom of association. As regards the procedure for trade union registration, the Government explains that the competent bodies check that registration requests meet all of the legal requirements so as to avoid any subsequent cancellations, and that if not all the necessary conditions are met, it provides the interested parties with the relevant observations so that the indicated flaws can be corrected and, therefore, the objectives of Convention No. 87 are met. With regard to the procedure for obtaining legal personality through registration, the Government states that this is governed by an administrative resolution, without the right of workers and employers to establish organizations of their own choosing being undermined. Lastly, the Government states that SITRAIMASH has not made another request for registration with the Labour Administration.

66. The Committee notes this information and brings the legislative aspect of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Case No. 2114 (Japan)

67. The Committee examined this case at its June 2002 session, where it made the following recommendations (328th Report, para. 416):

(a) The Committee recalls that teachers should have the right to bargain collectively.

(b) So far as the impartiality of the personnel commissions are concerned, the Committee requests the Government to take the necessary steps to ensure that the members of personnel commissions are persons whose impartiality commands general confidence and that workers' organizations have a meaningful voice in the appointment of the members of these commissions; it further requests to be kept informed of developments in this regard.

(c) The Committee requests the Government to take the appropriate measures to amend the relevant provisions of the Local Public Service Law so that personnel commissions have the power to give binding decisions with regard to salaries, working hours and other working conditions of local public employees. It also requests the Government to keep it informed of developments in this regard and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

(d) The Committee expresses the firm hope that future recommendations of personnel commissions will be fully and promptly implemented.

(e) The Committee requests the Government to take appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public school teachers, in conformity with Articles 4 and 6 of Convention No. 98. It asks the Government to keep it informed of developments in this regard.

68. In a communication of 30 August 2002, the Government states that it finds it very regrettable that the Committee refused to adjourn this case and examine it in conjunction with the complaints filed by two other workers' organizations (Case No. 2177, RENGO; Case No. 2183, ZENROREN) in connection with the current civil service reform, but rather chose to examine it on the merits. The Committee points out that it has already addressed this argument and considered that the present case could be dealt with independently of the issues stemming from said reform, which it said it would address "in the two other complaints concerning specifically and directly said reform" (328th Report, para. 415). The Committee finds a further justification for having proceeded in this manner in the latest Government's own statement that "Case No. 2114 was a special case, isolated both in its geographical and chronological context".

69. The Government further states, as regards recommendation (c), that it is inappropriate for the Committee to request such measures as amendments to domestic law, since that would unduly restrict the administrative discretion of a government. The Committee recalls that: the purpose of its procedure is to promote respect for trade union rights in law and in fact (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 4); that the matters dealt with by the ILO in respect of working conditions and promotion of freedom of association cannot be considered to be undue interference in the internal affairs of a sovereign State since such issues fall within the terms of reference that the ILO has received from its Members, who have committed themselves to cooperate with a view to attaining the objectives that they have assigned to it (Digest, ibid., para. 3); and where national laws, including those interpreted by the high courts, violate the principles of freedom of association, it has always considered it within its mandate to examine the laws, provide guidelines and offer the ILO's technical assistance to bring the laws into compliance with these principles, as set out in the Constitution of the ILO and the applicable Conventions (Digest, ibid., para. 8).

70. As regards the appointment of the members of the personnel commissions (recommendation (b)), the Government reiterates that the commissions are not composed of three parties representing labour or management. Therefore, the Government cannot accept the request that it move to ensure a meaningful voice for labour in the selection process. In this regard, the Committee recalls that in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should appear to be impartial both to the employers and the workers concerned.

71. As regards the right of teachers to bargain collectively (recommendations (a) and (e)), and the need to take appropriate measures to promote the full development and utilization of machinery for voluntary negotiation to regulate teachers' terms and conditions of employment by means of collective agreements (recommendation (e)), the Government describes, as it has already done, the system of salary recommendations by the personnel commissions and reiterates that the decision to delay full implementation of the recommendations of the commissions was of exceptional measure in order to deal with extraordinary circumstances. The Government states that public school teachers benefit from statutory terms and conditions of service and, as such, are public servants excluded from the application Convention No. 98, under its Article 6. The extent to which public servants are to be excluded from the application of Convention No. 98 should be determined through a judgement on whether they benefit from statutory terms and conditions of service.

72. As there seems to exist in this respect a fundamental misconception, the Committee recalls that the exemption in Article 6 of Convention No. 98 does not apply to teachers, be they employed in public or private schools. As has been stated many times, all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights (Digest, ibid., para. 793). A distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies) as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of Convention No. 98 (Digest, ibid., para. 794). If this were not the case, Convention No. 98 would be deprived of much of its scope. In this context, the Committee requests once again the Government to take appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public school teachers.

Case No. 2009 (Mauritius)

73. The Committee last examined this case at its March 2002 meeting, on which occasion it had called upon the parties to come promptly to an agreement on all the modalities concerning the granting and use of time-off facilities to teachers' unions (see 327th Report, paras. 81-83).

74. In a communication dated 22 August 2002, the Government indicates that at a meeting held on 29 July 2002, under the chairmanship of the Ministry of Civil Service Affairs and Administrative Reforms, the Ministry of Education and Scientific Research and the Government Teachers' Union agreed to the granting of time-off facilities to office bearers of the Union as follows: (i) president, secretary and treasurer - on a "as and when required basis"; (b) other committee members - one day per week. This agreement was reached on the understanding that the Government Teachers' Union will ensure that its members do not abuse the facilities granted.

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

Case No. 2106 (Mauritius)

76. The Committee examined this case at its March 2002 meeting (see 327th Report, paras. 84-88) concerning two distinct issues: (a) the annulment of a decision, made by the previous government on the eve of a general election, to pay an interim increase to public servants; and (b) the failure to apply an agreement, also concluded on the eve of a general election, on various conditions of work on a state-owned sugar milling enterprise. On that occasion, the Committee had noted that, notwithstanding the parties' differing appreciation on the nature and extend of the consultations and discussions which were held, a national tripartite meeting took place, which led to salary increases being granted to public servants on a sliding scale in favour of the lowest-paid category of personnel. The Committee further noted that private and public sector workers alike will henceforth get a statutory yearly bonus, which complements the compensation package. Noting that no judicial proceedings have been filed concerning the claim for Rs300, which claim might be taken up with the Pay Research Bureau (PRB) as part of the ongoing salary review exercise, the Committee requested the Government to keep it informed of the outcome, if any, of these PRB proceedings. Noting that the Government intends to take into account its previous conclusions and recommendations as regards the situation at the Rose Belle Sugar Estate, the Committee requested the Government to keep it informed of developments in this respect.

77. The Government states in a communication of 1 June 2002 that the PRB has invited trade unions to submit memoranda for its consideration in the context of the current salary review exercise. Most of the trade unions have already submitted their memoranda and the PRB is presently conducting consultations with them. The report of the PRB is due in July 2003. The Mauritius Labour Congress has been informed in July 2001 by the Ministry of Finance that it may, if it so wishes, take up the matter with the PRB in the context of the ongoing review exercise of the public sector pay and grading. The Government points out that the president of the Federation of the Civil Service Union has made a public statement after the recommendations of the Committee on Freedom of Association that the ILO has been misled and that it refuses to discuss the issue of Rs300 with the PRB. The Government also indicates that two national tripartite meetings were held in May 2002 where all the federations of trade unions were present to discuss the payment of salary compensation; the unions were briefed about the economic situation and the constraints which the country has to face as a result of the international events and the violent cyclone which caused extensive damage last year. The Government agreed to pay, from 1 July 2002, a compensation of 6.5 per cent in favour of the lowest-paid category of personnel.

78. Regarding the Rose Belle Sugar Estate issue, the Government indicates that since September 2001 several meetings, chaired by the Chairman/General Manager of the Rose Belle Sugar Estate, have been held with the union representatives where they were briefed on the Rose Belle Sugar Estate's financial situation. Two unions have declared a trade dispute at the Permanent Arbitration Tribunal on the issue of the introduction of a 40-hour week during crop season on the basis of a five-day week, payment of overtime to workers in certain occupations, increase of the prescribed rates in the Remuneration Order by 11 per cent or otherwise; the matter is still under the Tribunal's consideration. A judicial proceeding has also been filed by the Artisans' and General Workers' Unions concerning the non-implementation of the 40-hour week during crop season and the non-payment of the remaining balance of arrears from 1 January 1998 to November 1999; after several postponements, the case was struck off as the complainants were absent on the day of court hearing. The Rose Belle Sugar Estate has closed down since December 2001 because of its precarious financial situation. Prior to its closure, meetings were held with the union representatives and the workers, who were informed of the developments. Negotiations were held with the workers concerning the compensation and other benefits granted to them; the Government states that the employees concerned were fully satisfied with it.

79. The Committee notes this information and requests the Government to inform it of the final decision concerning the claim for Rs300 as an interim increase to public servants, as a result of a previous decision of the authorities.

Case No. 2115 (Mexico)

80. The Committee examined at its March 2002 meeting this case, which relates to the refusal to register amendments to the by-laws of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic (SPTICRM) so that it may include in its activities any industrial establishment and/or branch of construction involved in gas installations, gas pipelines, electricals and electricity (see 327th Report, paras. 664-683). On that occasion, the Committee made the following recommendation:

As regards the refusal by the Directorate-General for the Registration of Associations to register the amendments to an organization's by-laws, the Committee expresses the hope that when examining the issue raised in the present case the competent judicial authorities will take into account the principle according to which the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions, that the national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities, and requests the Government to keep it informed of developments.

81. In a communication dated 28 May 2002, the Government refers to the legislation in force and states that it complies with the principles of the Committee on Freedom of Association. The Government adds that the Tenth Collegiate Circuit Court for labour affairs will decide the issue raised by the complainant organization and that the Government will comply with the ruling handed down.

82. The SPTICRM sent further information in a communication dated 13 June 2002. The organization includes the ruling of the Tenth Collegiate Circuit Court for labour affairs of 6 June 2002 and states that, in spite of the ruling being in its favour, the Government continues not to "take note" of the amendments to the constitution of the trade union. In the ruling of 6 June 2002, the Court considers it "wrong that the Under-Secretary for Labour and Social Security endorse the refusal to take note (of the amendments to the trade union's by-laws) based on article 360 of the Federal Labour Law, which does not lay down requirements for the modification of internal trade union by-laws", and that

... the correct procedure is to change the ruling being challenged in order to uphold the "amparo" proceedings filed by the complainant trade union organization so that the competent authority, namely the Under-Secretary for Labour and Social Security, vacates the resolution being challenged and, in its place, issues another in which it examines with full jurisdiction the conformity of the proposed by-law amendments and, with full autonomy, soundly and on justifiable grounds, decides what is in accordance with the law, without basing its decision on the provisions of article 360 of the Federal Labour Law as these are not applicable to by-law amendments.

83. In its communication dated 20 September 2002, the Government refers to the abovementioned ruling and emphasizes that after having examined the file, the administrative authorities took note of the by-laws on 16 August 2002. In a communication dated 23 September 2002, the complainant organization raises objections concerning certain aspects of a decision of the administrative authority on this question, in particular, to the extent in which they require that the trade union's objectives should be limited to the federal level.

84. In a communication of 5 November 2002, the Government states that the First District Tribunal rejected the allegations of the trade union. The Government adds that the trade union is registered at the federal level and that, as a general rule, the construction industry falls within the competence of the local authorities except in case of works undertaken in the federal zone.

85. The Committee notes the information provided by the Government. The Committee invites the complainant organization to provide clarifications, if it considers it appropriate, on the aspects of the administrative authority's decision that it contests, in the light of the latest observations made by the Government.

Case No. 2136 (Mexico)

86. The Committee last examined this case at its June 2002 meeting (see 328th Report, paras. 491-529). On that occasion the Committee requested the Government to keep it informed of the rulings issued in the proceedings initiated by a group of workers who had been dismissed for supporting the application by ASPA to conclude a collective labour agreement and, if it transpired that the dismissals had been due to legitimate trade union activity, to ensure that the workers concerned were reinstated in their posts, without loss of pay.

87. In a communication dated 24 June 2002, the Trade Union Association of Airline Pilots of Mexico (ASPA) stated that the Consorcio Aviaxsa S.A. de C.V. (AVIACSA) company was continuing to disregard the right of airline pilots to negotiate collectively. It emphasizes that originally the collective agreement signed between the company and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS) did not include airline pilots and that they were subsequently included without being consulted. The complainant organization reiterates that it enjoys a majority of votes from the pilots and as such it was appropriate for it to negotiate collectively, in accordance with the provisions of articles 388 and 389 of the Federal Labour Law. The complainant organization adds that, with a view to deciding definitively who enjoyed the majority, the Federal Council for Conciliation and Arbitration ordered, on 27 February 2002, that a new ballot should be held involving only the AVIACSA pilots. That ballot took place on 13 March 2002. On that occasion, of 111 pilots who participated, 65 voted for ASPA and 46 for STIAS, but in the course of the ballot, the ballot list from Tijuana was stolen, and this was reported to the Attorney-General's Office of the Republic. Consequently, the Federal Council for Conciliation and Arbitration ordered that the pilots who participated in the ballot in Tijuana should attend a hearing on 1 April 2002 in order to confirm their votes. On that occasion, the complainant organization reports that various individuals hired by AVIACSA assaulted the members of ASPA, and this was reported to the criminal court.

88. In addition, the complainant organization alleges that the collective labour agreement between Consorcio Aviaxsa S.A. de C.V. (AVIACSA) and STIAS contains various clauses which violate the freedom of association. Clause 4 of the agreement states that if all or some of the workers of a particular speciality separate from or leave the union, they will be replaced by workers who are members of the union.

89. Finally, the complainant organization states that the company again dismissed more pilots in April and May 2002 for voting in favour of ASPA at the last ballot on 13 March 2002.

90. In a communication dated 11 September 2002, the Government states that, in its last examination of the case, the Committee determined that, since the Government of Mexico had demonstrated that the most representative trade union in the AVIACSA company was the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS) (which signed the collective agreement in force), it does not appear that the principles of collective bargaining were violated by denying ASPA the right to negotiate a specific collective agreement for the pilots' group. The Committee emphasized that the system of collective bargaining with exclusive rights for the most representative trade union is compatible with the principle of freedom of association. This is a matter to be decided on the basis of national law and practice.

91. With respect to the contents of the collective labour agreement concluded between AVIACSA and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS), the Government of Mexico states that it unfailingly respects the effective recognition of the right to collective bargaining, in accordance with articles 386 to 403 of the Federal Labour Law.

92. Such collective agreements must also cover the minimum labour standards laid down in section XXVII of article 123, paragraph A of the Political Constitution of the United Mexican States and article 56 of the Federal Labour Law states that under no circumstances shall conditions of labour be inferior to those laid down in that law and shall be proportionate to the importance of the services in question and shall be the same for the same kinds of work.

93. The Government adds that, in any case, any worker who considers his rights to be violated, is entitled to take action to assert them according to the terms of the Federal Labour Law itself.

94. With regard to ASPA's assertion that it is incorrect that the ballots were general with the participation of the entire AVIACSA workforce, the Government points out that, since it demonstrated that a trade union with greater representativity existed in the AVIACSA company, it did not appear that the principles of collective bargaining had been violated by denying ASPA the right to negotiate a specific agreement for the pilots' group. In addition, the Sixth Collegiate Tribunal on Labour of the First Circuit, in the appeal brought by ASPA in case No. DT.17536/2001, ordered solely the AVIACSA pilots to be balloted, making the previous ballot null and void. The Federal Council for Conciliation and Arbitration, pursuant to the ruling of the Collegiate Tribunal, was obliged to comply and complied in full with the order, holding a new ballot on 13 March 2002 exclusively for the pilots. The Collegiate Tribunal, in granting ASPA the right to appeal, did not rule on the substance of the problem. In no part of the ruling was it established that the ballot should be thus conducted because the right to sign the collective labour agreement was in dispute, in relation to that category of workers. What this ruling considered was that the ballot should be held as requested by ASPA, i.e. exclusively for the pilots, on purely procedural grounds.

95. As regards the theft of the voting list in Tijuana, Baja California, the clerk commissioned to conduct the ballot confirmed that the list had been stolen containing the names, votes, forms of identification, signatures and objections from the airline pilots who had participated in the ballot up to 1700 hours on 3 March 2002. In accordance with article 782 of the Federal Labour Law, the Council summoned the pilots who had participated in the ballot in this entity to appear on 1, 2, 3, 4 and 5 April 2002 and cast their votes freely before the agreements secretary. This was necessary in order to identify who had voted and for which union, so as to ensure legal certainty and avoid leaving any of the parties defenceless.

96. On 1 April 2002 acts of violence occurred involving ASPA, AVIACSA and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS), demonstrating clear irresponsibility and lack of respect towards the authority and those subject to it. The agreements secretaries Pedro Antonio Ruiz and Rodríguez and Enrique Sebastián Fonseca Aguilar noted these occurrences in a formal record. Subsequently, Special Council No. 2 ordered, in an official document, that the record and a certified copy of the aforementioned agreement be handed over to the Federal Public Prosecutor's Office and warned the parties to conduct themselves with due respect and consideration in the hearings or proceedings concerned, cautioning them that disciplinary measures set forth in the Federal Labour Law would otherwise be imposed.

97. As regards the alleged unfair dismissal of pilots who voted for ASPA in the ballot of 13 March 2002, it should be pointed out that they can take legal action for unfair dismissal so that the Federal Council for Conciliation and Arbitration can determine whether they were unfairly dismissed on account of their trade union activity.

98. In conclusion, the Government affirms that during the proceedings concerning the right to sign the AVIACSA collective agreement, the parties were able to exercise their rights in accordance with the law and take action against those resolutions which they considered affected them. The authorities acted in accordance with Convention No. 87.

99. The Committee notes the information from the complainant organization and the Government's observations. As regards the negotiation of a collective agreement by the airline pilots, in its previous examination of the case the Committee concluded that "as the Government has demonstrated that the most representative trade union at AVIACSA is STIAS (the holder of the collective agreement), it does not appear that the principles of collective bargaining have been violated by denying the complainant organization the right to negotiate a specific collective agreement for the pilots. The Committee notes that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. This is a matter to be decided on the basis of national legislation and practice" (see 328th Report, para. 526). The Committee notes the communication from the complainant organization on the content and circumstances in which the collective agreement in force was concluded, and its explanations which reveal that national law grants the possibility of a specific collective agreement for a particular category of workers, as is the case with the pilots, and notes that in the last ballot held on 13 March 2002, in accordance with the ruling of the Sixth Collegiate Tribunal on Labour of the First Circuit, in which only the airline pilots were to participate, ASPA obtained the majority of the votes. The Committee requests the Government to take measures to promote discussions between the parties with a view to considering the possibility of concluding a specific collective agreement for the pilots; otherwise it should ensure that the pilots' trade union organizations can participate in the negotiation of the enterprise collective agreement.

100. As regards the acts of violence which took place during the hearing of 1 April, which was held because of the theft of the Tijuana voting list in order to identify who the workers had voted for, the Committee notes the Government's information that the Public Prosecutor's Office cautioned the parties and warned them of disciplinary sanctions and requests it to keep it informed of any judicial decision in this respect which may remain pending.

101. As regards the dismissals of the ASPA members referred to by the Committee in its previous examination of the case, the Committee observes that the judicial proceedings are still pending. The Committee requests the Government to take the appropriate measures to ensure that those proceedings are concluded as quickly as possible and, if the anti-union nature thereof is proven, that the dismissed workers are reinstated immediately, without loss of pay. In addition, the Committee notes with concern the allegations relating to the dismissal of new workers for voting in favour of the ASPA trade union organization. The Committee notes the high number of dismissals in the context of a collective bargaining dispute and that the Government merely points out the existence of the possibility of taking legal action. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696). The Committee requests the Government to ensure that the relevant inquiries are conducted immediately and, if the anti-union nature of these latest dismissals is proven, to consider the possibility of ensuring the reinstatement of these workers as soon as possible. The Committee requests the Government to keep it informed in this respect.

102. As regards the allegations concerning the clauses of the collective agreement, the Committee notes the Government's information that the guidelines to be followed by collective agreements are established in law and that any worker who considers his rights to have been violated may take legal action. The Committee has emphasized on a previous occasion that "problems related to union security clauses should be resolved at the national level, in conformity with national practice and the industrial relations system in each country. In other words, both situations where union security clauses are authorized and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association" (see Digest, op. cit., para. 323).

Case No. 2020 (Nicaragua)

103. The Committee last examined this case, relating, in particular, to anti-union dismissals, at its June 2000 meeting (see 321st Report, paras. 42-50). On that occasion, the Committee, after having noted that the workers who had accepted settlements could not be reinstated as the matter had been resolved once and for all, made the following conclusions and recommendations:

The Committee regrets that the Government has not interceded on behalf of the 367 dismissed workers and recalls the principle that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can, in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker's trade union membership or activities.

104. In a communication dated 6 June 2002, the Government sent the ruling of the Appeals Court, Managua District, Labour Division, dated 17 May 2002. By virtue of this, the Nicaraguan Telecommunications Company (ENTEL) shall reinstate, within three days of notification of the decision to the plaintiffs, Plácido H. Rojas Vílchez, Mario Rafael Malespín Martínez (who had trade union privileges) and Yarbín José Roa Vallejos in the same positions that they held and in identical working conditions, with the corresponding payment of the usual salaries owing to each one of them from the date of their dismissal until their reinstatement. The plaintiffs shall collect the social allowances and benefits to which they are entitled, in accordance with the law and the collective labour agreement in force.

105. The Committee notes this information and repeats once again the principle mentioned in its previous conclusions and recommendations.

Case No. 2006 (Pakistan)

106. This case concerns a ban on trade union rights and activities at the Karachi Electric Supply Corporation (KESC) and the forced retirement of trade union officials at KESC and at the Pakistan Water and Development Authority (WAPDA). When it last examined this case, the Committee urged once again the Government to lift the ban on trade union activities at KESC, and requested it to restore without delay the rights of the KESC Democratic Mazdoor Union as collective bargaining agent (326th Report, paras. 120-123).

107. In a communication of 26 August 2002, the Government indicates that the KESC is being privatized and that the Ministry of Labour has taken up the issue of the protection of workers' rights in that process with the Federal Steering Committee monitoring the restructuring and privatization of KESC. In that context:

- a package of compensation for KESC employees will be developed in consultation with employees' representatives, under a Memorandum of Agreement between the relevant ministries and the All Pakistan State Workers Action Committee (APSWAC);

- upon being privatized, KESC will avoid the inclusion of any provision that may affect workers' right to form trade unions under Conventions Nos. 87 and 98;

- KESC will enter a bilateral agreement with employees' representatives to maintain good order and discipline in the unit after privatization; that agreement may include provisions fro the bilateral resolution of issues without resorting to industrial action.

108. The Committee takes note of this information. Recalling that the Government should, without delay, lift the ban on trade union activities at KESC and restore the rights of the KESC Democratic Mazdoor Union as collective bargaining agent, the Committee urges once again the Government to take such measures without delay and to keep it informed of developments in the process of KESC privatization, in particular as regards the preservation of workers' rights. The Committee further requests the Government to provide it with a copy of the agreement between the ministries and the APSWAC, once it is concluded.

Case No. 2086 (Paraguay)

109. The Committee last examined this case at its June 2002 meeting (see 328th Report, paras. 552-569), on which occasion it formulated the following recommendations:

(a) Taking into account the serious flaws in the legal proceedings, both procedural and of substance, and in particular the lengthy duration of the pre-trial detention, as well as the fact that there was a denial of justice since no tribunal ruled on the requests for conditional or final release of trade union leaders, the Committee believes that all necessary measures should be taken to ensure the release of Alan Flores, Jerónimo López and Reinaldo Barreto Medina. Furthermore, the Committee hopes that the judicial bodies will speed up the proceedings, requests the Government to keep it informed of any judicial decision issued in this respect, and hopes that these decisions will be made in accordance with Conventions Nos. 87 and 98.

(b) The Committee requests the Government to keep it informed of any proceedings that Florinda Insaurralde may bring against resolution No. 321/99 and Decree No. 7081/2000, which led to her dismissal.

110. In a communication of September 2002, the complainant organizations criticize the conditions under which the trade union leaders Alan Flores and Jerónimo López are detained (a dirty and badly lit dungeon) and allege that their lives had been threatened in their place of detention. They also allege that the Judge of First Instance of the Criminal Courts violated constitutional provisions by recently refusing to liberate the abovementioned trade union leaders for having served part of the sentence imposed on them.

111. In its communication of 6 September and 7 October 2002, the Government states with regard to the legal proceedings concerning Alan Flores, Jerónimo López and Reinaldo Barreto Medina that: (1) in order to hear the appeal against the sentence handed down in the first instance, as well as the appeal against other decisions, the Second Chamber of the Criminal Court of Appeal has been constituted; (2) the members of the Chamber of the Court of Appeal are collectively in the process of reading the entire content of the file and have taken measures in order that the appeal be resolved shortly; and (3) the criminal judge of justice enforcement No. 7 handed down a ruling to liberate Alan Flores and Jerónimo López for having served the minimum sentence and to apply substitute measures (house arrest) instead of preventive detention.

112. The Committee notes this information and, in particular, the fact that the trade union leaders Alan Flores and Jerónimo López are currently under house arrest. However, taking into account its previous comments, the serious flaws in the legal proceedings concerning the two trade union leaders noted in the previous examination of the case, the time gone by since the sentence was handed down in the first instance (over one year) without the relevant appeal having been decided, and the fact that the accused have already served the minimum sentence imposed on them in the first instance, the Committee profoundly regrets that no measure has been taken to release Reinaldo Barreto Medina, Jéronimo López and Alan Flores.

113. Lastly, the Committee reiterates its recommendation concerning the dismissal of Florinda Insaurralde and that it be kept informed of all motions filed.

Case No. 1796 (Peru)

114. At its November 2001 meeting, the Committee requested the Government to keep it informed of the final outcome of the proceedings concerning the trade union leader, Mr. Delfín Quispe Saavedra (see 326th Report, paras. 127-129).

115. In communications dated 15 April and 27 May 2002, the Government states that the two legal proceedings (on repayment of social benefits - which had already been declared without grounds - and the payment of arbitration awards - the appeal of which was quashed) initiated by Mr. Delfín Quispe Saavedra against the Iron and Steel Enterprise of Peru were withdrawn, and therefore there are no legal proceedings recorded on the invalidity of the dismissal of Mr. Delfín Quispe Saavedra.

116. The Committee notes this information and recalls to the Government the general conclusion that it made at its first examination of the case in which it requested that the necessary measures be taken to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination (see 304th Report, para. 458).

Case No. 1813 (Peru)

117. At its June 2001 meeting, the Committee expressed the hope that the judicial proceedings under way at that time (concerning the death of the trade unionists Messrs. Alipio Chueca and Juan Marco Danayre Cisneros as a result of shots fired by CORDECALLAO security staff) be concluded in the near future and requested the Government to keep it informed in that regard (see 325th Report, para. 63).

118. In its communication of 29 August 2002, the Government states that the proceedings in question are on hold until the oral proceedings are rescheduled.

119. The Committee highlights that justice delayed is justice denied, once again expresses the firm hope that the judicial proceedings in question be concluded in the near future and requests the Government to keep it informed of the outcome of these proceedings.

Case No. 2076 (Peru)

120. The Committee last examined this case at its June 2002 meeting (see 328th Report, paras. 65-67). The Committee requested the Government: (1) to confirm whether the trade union leaders Mr. Rey Fernández Patiño and Mr. Adriel Vargas Cáritas had in fact been reinstated in their posts; and (2) to communicate the final outcome of the proceedings concerning trade union officials Mr. Heraldo Torres Osnayo and Mr. Juan Ayulo Petzoldt. The Committee regretted that more than two years after the alleged events had taken place, it did not have the information that the Government had requested of the enterprise (to confirm the reinstatement of the trade union leaders Mr. Rey Fernández Patiño and Mr. Adriel Vargas Cáritas) and requested the Government to take measures without delay so that this information can be provided to the Committee.

121. In its communications of 29 August and 18 September 2002, the Government encloses the final judgements concerning trade union officials Mr. Heraldo Torres Osnayo and Mr. Juan Ayulo Petzoldt which ordered their reinstatement in their posts. The Government confirms that the trade union officials Mr. Rey Fernández Patiño and Mr. Adriel Vargas Cáritas were reinstated in their posts.

122. The Committee notes with satisfaction the information sent by the Government.

Case No. 2098 (Peru)

123. The Committee last examined this case, concerning the dismissal of trade union officials, the request for the cancellation of the registration of a trade union and non-observance of a collective agreement, at its March 2002 meeting (see 327th Report, paras. 738-761). On that occasion, the Committee made the following recommendations:

- the Committee once again requests the Government to promptly keep it informed of the ruling handed down by the Supreme Court concerning the dismissal of the trade union official Mr. Amílcar Zelada;

- as regards the dismissal of the trade union leader Mr. Hipólito Luna Melgarejo (of the trade union of the Agroindustrial San Jacinto SA Enterprise), the Secretary-General and seven leaders of the Single Trade Union of Workers of the Agroindustrial Laredo SA Enterprise, the Committee notes the Government's indication that the trade union leader Mr. Dionisio Cruz Ramos (Agroindustrial Laredo SA Enterprise) has benefited from a judicial order for reinstatement in his job and that it will keep the Committee informed of the judgements to be handed down in respect of the dismissals of the other trade union leaders. As concerns the dismissals of Mr. Carlos Alberto Paico and Mr. Alfredo Guillermo de la Cruz Barrientos (members of the Board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and that of the union members and former officials Mr. Alfonso Terrones Rojas and Mr. Zósimo Riveros Villa, the Committee requests the Government to investigate without delay the dismissals and, if it finds that the persons in question were indeed dismissed because of their trade union activities, that it take measures to ensure their reinstatement in their posts. The Committee requests the Government to keep it informed of the development of all legal proceedings connected with the dismissals;

- the Committee repeats its previous observation on the need for the Government to take measures to amend the legislation with a view to reducing the minimum number of workers required by law to constitute non-enterprise trade unions.

124. In its communications dated 6 June and 14 September 2002, the Government states that, with regard to the ruling of the Supreme Court on the dismissal of the trade union official Mr. Amílcar Zelada, it declared irreceivable the appeal lodged by the official. Concerning the other alleged dismissals, the Government asked the judicial authorities for information. With regard to the reduction of the minimum number of workers required by law to constitute non-enterprise trade unions, the Government states that the National Council for Labour and Social Promotion, comprised of workers' and employers' representatives and representatives from social organizations linked to the sector, has elaborated a draft law to modify the current law on collective labour relations, in particular those referring to collective labour rights. The new article 14 of this law will state that "in order to establish themselves and to maintain their existence, trade unions shall have as members at least twenty (20) workers, for enterprise trade unions; or at least fifty (50) workers, for trade unions not falling into this category".

125. Having noted the information provided by the Government, the Committee:

- notes that the Supreme Court ruled irreceivable the appeal lodged by the trade union official Mr. Amílcar Zelada;

- as regards the dismissal of the trade union leader Mr. Hipólito Luna Melgarejo (of the trade union of the Agroindustrial San Jacinto SA Enterprise), the Secretary-General and seven leaders of the Single Trade Union of Workers of the Agroindustrial Laredo SA Enterprise, the Committee takes note of the judicial order for reinstatement in his job of trade union leader Mr. Dionisio Cruz Ramos (Agroindustrial Laredo SA Enterprise), and once again requests the Government to keep it informed of the rulings handed down on the dismissals of the other trade union leaders. As regards the dismissals of Mr. Carlos Alberto Paico and Mr. Alfredo Guillermo de la Cruz Barrientos (members of the Board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and of the trade union members and former officials Mr. Alfonso Terrones Rojas and Mr. Zósimo Riveros Villa, the Committee, while taking note that the Government is waiting for certain information, requests it once again to investigate without delay the dismissals and, if it finds that the persons in question were indeed dismissed because of their trade union activities, that it take appropriate measures to ensure their reinstatement in their posts. The Committee also, once again, requests the Government to keep it informed of the development of all legal proceedings connected with the dismissals; and

- finally, as regards the need to take measures to amend the legislation with a view to reducing the minimum number of workers required by law to constitute non-enterprise trade unions, the Committee notes the draft law to modify the current law on collective labour relations as regards collective labour rights and that the new article 14 of this law will fix the minimum number of workers for enterprise trade unions at 20 and that for non-enterprise trade unions at 50. The Committee requests the Government to keep it informed of developments with regard to this draft law.

Case No. 1826 (Philippines)

126. The Committee last examined this case at its March 2002 session (327th Report, paras. 98-100), which concerns lengthy delays and several postponements of the trade union certification election (first requested in February 1994) at Cebu Mitsumi Inc., in the Danao export processing zone. On that occasion, the Committee had noted the Government's communication indicating that the certification dispute was submitted to a mediator-arbitrator, who was supposed to resolve the issue before 31 January 2002. In view of the lengthy delays, the Committee expressed the firm hope that the mediator-arbitrator would issue very shortly a decision fully taking into account freedom of association principles. It requested the Government to provide it with a copy of that decision, and to keep it informed of developments. The Committee requested once again the Government to provide information on the suspension of Mr. Ulalan, president of the Cebu Mitsumi Employees' Union, and on steps taken with a view to establishing legislative framework allowing for a fair and speedy certification procedure, providing adequate protection against acts of interference by employers in such matters.

127. In its communication of 20 May 2002, the Government indicates that on 3 April 2002, the mediator-arbitrator has ruled that certification election at Cebu Mitsumi was a failure, as the total number of valid votes cast in the 4 May certification election was less than the majority of all eligible employees in the bargaining unit. In addition, the Government informs that the counsel for the petitioner (Cebu Mitsumi Inc. Employees Union) has filed a Memorandum of Appeal, while the counsel for respondent (Mitsumi Inc.) has filed its reply Memorandum of Appeal, and that all records of the case have been endorsed to the Labor and Employment Secretary on 7 May 2002, for review and resolution.

128. The Committee takes note of this information. The Committee expresses its deep regret that the question of trade union certification at Cebu Mitsumi has not yet been resolved, despite the fact that it first examined this question over seven years ago. It urges the Government to expedite the proceedings concerning the Appeal of the mediator-arbitrator's decision on the certification election at Mitsumi, and hopes that the decision will be compatible with freedom of association principles. With regard to the other issues concerning this case, the Committee regrets that, once again, the Government has not provided any information and requests it to provide information on the suspension of Mr. Ulalan and on steps taken with a view to establishing a legislative framework allowing for a fair and speedy certification process, providing adequate protection against acts of interference by employers in such matters.

Case No. 1972 (Poland)

129. The Committee last examined this case at its June 2002 meeting where it requested the Government to keep it informed of the outcome of the judicial proceedings concerning Mr. Grabowski, Chairperson of the workers' organization, Sprawiedliwosc (328th Report, paras. 68-70).

130. In a communication of 27 August 2002, the Government provided the judgement issued on 6 May 2002 by the District Court of Warsaw Praga-South. The Court held that the dismissal of Mr. Grabowski was justified and had no connection with his trade union activities. Considering that his reinstatement "would be incompatible with the social and economic objectives of the law and the principles of community life", the court dismissed his claim for reinstatement but awarded him a compensation for unlawful termination of contract in the amount of three months salary, with interest from the date of dismissal.

131. The Committee takes note of this information.

Case No. 2094 (Slovakia)

132. The Committee last examined this case, which concerned amongst other things allegations regarding a legislation which would restrict the right to strike, at its March 2002 session (see 327th Report, paras. 104-106). It had previously requested the Government to take full account of the principles of freedom of association in the drafting of the amendments of Act No. 2/1991, Collection of Laws on Collective Bargaining, and trusted that all the relevant amendments would be adopted in the near future. In this regard, the Committee later noted that the amendments to Act No. 2/1991 were reflected in Act No. 209/2001, Collection of Laws, which came into force on 1 January 2002.

133. In a communication of 20 May 2002, the complainant organization acknowledges that following the complaint it lodged, and the subsequent recommendations by the Committee, the Act on Collective Bargaining was amended. However, the complainant organization expresses its deep concern over the fact that the Government has considered that the strike staged by the Trade Union Association of Railwaymen in June 2001, which was the basis for the complaint in this case, was a political one and was thus "beyond the principles of freedom of association". The complainant organization insists on the fact that the said strike was aimed at defending the employees' interests and that the railwaymen had a legitimate right to organize it.

134. In a communication dated 13 September 2002, the Government indicates that in a statement of January 2002, it categorized the strike staged by the Trade Union Association of Railwaymen, based on the nature of claims demanded via strike action, as a protest (political) strike and not as an occupational or trade union strike. The Government explains that in June 2001 the complainant organization issued a statement in order to coordinate the strike action in several regions, which stated: "We inform everyone that the strike action being prepared on 14 June 2001 is not a strike pursuant to the Act on Collective Bargaining. The objective of the strike is the protection of economic and social interests of employees of the Slovak Republic Railways." Thus, according to the Government, the objective of the strike was directed against the restructuring of the Slovak Republic railways and was not directly of an occupational nature.

135. The Committee has taken note of the follow-up information provided by the complainant organization as well as the detailed reply from the Government. The Committee wishes to recall that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. Furthermore, while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government's economic and social policies. Finally, the Committee recalls that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members' interests.

Case No. 1581 (Thailand)

136. The Committee last examined this case at its March 2002 meeting when it expressed its concern over the maintenance by the State Enterprise Labour Relations Act (SELRA) of a situation of trade union monopoly in state enterprises, broad powers granted to the Registrar to oversee certain internal affairs of the trade union, a general prohibition of strikes and severe penalties for strike action, even when peaceful. The Committee asked the Government to take necessary measures to amend the SELRA so as to bring it fully into conformity with the principles of freedom of association. It further requested the Government to send a copy of the additional proposed amendments to the Labour Relations Act that at the time were under consideration by the Council of State (see 327th Report, paras. 107-112).

137. The Committee notes the Government's communication of 7 October 2002 in which the Government indicates that the SELRA was a result of a democratic process, agreed upon and supported by all concerned parties. The Government further states that since the Act has been in force, it has benefited employers, state enterprise employees and the public at large. Referring to the observations of the Committee, the Government states that the commented sections of the Act were adopted with a view to enable a state enterprise trade union to become a consolidated, strong and true representative organization of state enterprise employees, to prevent a problem related to power struggles among trade union leaders caused by the competition in establishing a state enterprise trade union, as well as to enable the labour administration to be transparent, able to bring response to real needs of employees, good relations within the organization and to generate peace and stability. According to the Government, in order to achieve the said objectives, the Registrar has to be granted with discretion to oversee activities of a trade union. As concerns strike prohibition, the Committee notes that the Government states that the state enterprises of Thailand are established to run businesses for national security, to provide essential public services and to run businesses for sake of national economy; any industrial action is therefore forbidden.

138. The Committee takes note of this information. It regrets that no progress has been made in respect of its previous recommendations. Accordingly, the Committee reiterates its previous comments and once again urges the Government to take the necessary measures to amend the act in order to bring it fully into conformity with the principles of freedom of association and to keep it informed of any developments in this regard. It recalls to the Government that the technical assistance of the Office is available in this respect, should the Government so desire.

Case No. 2126 (Turkey)

139. The Committee last examined this case at its meeting in March 2002 when it requested the Government to: take the necessary measures to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards; institute an independent investigation into the allegations of impending anti-union dismissals of 1,100 workers at the Haliç and Camialti shipyards; institute independent investigations into the allegations of harassment and intimidation of Dok Gemi-Is members by management, including the dismissal of the maximum number of workers allowed by law (nine per month), and the dismissal of some 200 workers at the ship-scrapping site at Aliaga the day after they had agreed to join the union and to take the necessary remedial steps if these allegations are proven to be true, including reinstatement in their jobs or adequate compensation for damages suffered by those dismissed; and amend the dual criteria for representational rights set forth in section 12 of Act No. 2822 (see 327th Report, paras. 805-847.)

140. In a communication dated 9 September 2002, the Government reiterates the explanations given in its initial response to the complaint concerning the designation of the Pendik and Alaybey shipyards as within the national defence sector and concludes that it is not legally possible for the management to grant competence to the Dok Gemi-Is to represent workers in these military shipyards. As regards the allegations of impending anti-union dismissals, the Government states that the national legislation provides effective protection for freedom of association and any acts contrary to this principle can be appealed to the courts. In light of the independence of the judiciary, the Government states that it is not possible to institute an inquiry or investigation upon a final verdict of a court of law. As regards the allegations of management harassment and intimidation of Dok Gemi-Is members, the Government once again states that such matters can be appealed to the courts and that, in any event, they were not substantiated. Finally, in respect of the dual criteria for representational rights, the Government states that a Committee of Academics, including the social partners, has been established with the objective of bringing national legislation into conformity with international labour standards and the draft texts will soon be submitted to the National Assembly.

141. While taking due note of the information provided by the Government, the Committee expresses its deep regret at the Government's unwillingness to give effect to its recommendations on all the matters raised, with the exception of the question of dual criteria for representational rights. In these circumstances, the Committee first considers it necessary to recall its conclusion that the classification of the Pendik and Alaybey shipyards as part of the national defence sector constituted a violation of both the organizational and the representational rights of the workers affiliated to Dok Gemi-Is. The Committee came to this conclusion, amongst other reasons, because it considered that the distinction made between shipbuilding in the commercial sector and that carried out for naval purposes bordered on the illogical, particularly given the identical nature of the functions carried out by the workers and the fact that there is no distinction between their status as employee. The workers in these shipyards were one day considered within the shipbuilding sector and the next day were classified as within the national defence sector; the result being that, from one day to the next, their union could no longer represent them. The Committee therefore once again calls on the Government to take the necessary measures to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to keep it informed of the progress made in this regard. As concerns the institution of independent investigations into the allegations of impending dismissals, harassment and intimidation, while noting the Government's reference to the mandate of the courts in this respect, the Committee considers that these allegations, which concern large numbers of workers and relate to an overall question of the industrial relations climate in certain shipyards, might best be settled, for all concerned, by an independent investigation. In the absence of any pending court cases on these matters which might understandably give rise to a problem of conflicting mandates in the event an investigation was initiated, the Committee once again urges the Government to institute independent investigations into these pending matters with the aim of improving the overall industrial relations climate and redressing any acts of anti-union discrimination. It requests the Government to keep it informed of the progress made in this regard. Finally, the Committee requests the Government to keep it informed of any developments in the drafting of amendments concerning the dual criteria for representational purposes.

Case No. 2018 (Ukraine)

142. The Committee last examined this case at its June 2002 meeting when it requested the Government to ensure that the criminal proceedings against the president of the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (the NPRP) are carried out with diligence (see 328th Report, paras. 79-82).

143. In its communication dated 23 August 2002, the Government indicated that the Odessa regional administration examined the questions of violation by the administration of the Ilyichevsk Maritime Commercial Port of the NPRP's trade union rights. Upon verification, it had been found that the port administration has not been transferring trade union dues for a period of 14 months. However, the Government indicated that starting August 2002, the port administration began paying off the debt and had transferred 14,000 griven to the trade union's account. Furthermore, the Government indicated that according to section 46 of the Law on Trade Unions, "persons who by their acts or failure to act impede the legitimate activity of trade unions shall be liable to the disciplinary, administrative or criminal responsibility". Therefore, it has been recommended to the NPRP to file a complaint with the courts. The Government further stated that in order to find a solution to the conflict at the Ilyichevsk Maritime Commercial Port, the Ministry of Labour and Social Policy of Ukraine had requested, in August 2002, collaboration from the Ministry of Transport. As concerns the criminal and civil proceedings against the president of the NPRP, Mr. Boychouk, the Government stated that, according to Mr. Boychouk's declaration of 14 August 2002, all the proceedings against him have been dropped.

144. The Committee notes this information with interest and requests the Government to continue to keep it informed of any further developments relating to this case.

Case No. 2038 (Ukraine)

145. The Committee last examined this case at its November 2001 meeting when it noted with interest the Government's statement that the proposed amendments to the Trade Unions Act would take into account the conclusions of the ILO technical assistance mission (see 326th Report, paras. 165-167).

146. In a communication dated 12 March 2002, the Free Trade Union's Federation of Ukraine indicates that on 13 December 2001, the Supreme Rada of Ukraine adopted the Act amending the Trade Unions Act, and more particularly its sections 11 and 16. According to the new section 16, for collective bargaining purposes, trade unions are subject to legalization through registration by the Ministry of Justice or district and local administrations of justice. According to the complainant, the new version of section 16 continues to violate trade union rights as it maintains the requirement of registration of a trade union. Such a requirement, according to the complainant, is tantamount to previous authorization to establish a trade union. While obtaining legal personality upon its creation, a trade union cannot fully exercise its activities without satisfying the condition set by section 16. Moreover, the complainant provides examples of difficulties encountered by unregistered trade unions. The complainant has suggested an amendment to section 16 of the Act, which is currently before the Rada committee dealing with social and labour matters. According to the proposed amendment, trade unions would no longer be subject to registration, but only to legalization by the Department of Statistics.

147. In communications dated 25 April, 12 July and 30 August 2002, the Government indicates that, in order to engage in bargaining at the appropriate level for the regulation through collective agreement of labour and socio-economic relations, trade unions, their organizations and associations are subject to legalization (official registration) through registration. The registration of all-Ukrainian trade unions and their associations is carried out by the Ministry of Justice of Ukraine, and that of other trade unions and their associations by the Main Directorate of Justice of the Ministry of Ukraine for the Crimea Autonomous Republic, and the regional, district and municipal justice directorates. The registration certificate is delivered and trade unions are included in the register of public associations on the basis of the documents required by section 16 (trade union by-laws, founding documents, etc.) within one month from the application date. Paragraph 10 of the section amended in December 2001 provides that trade unions and confederations of trade unions acquire their legal personality from the moment of their establishment (approval of by-laws). Legal personality is also acquired by the organizations affiliated to the trade union carrying out its activity on the basis of its by-laws. Thus, according to the Government, legalization through registration does not constitute previous authorization for the establishment of a trade union. The Government further states that there are 86 presently registered trade unions. Moreover, it considers that the fact that the Free Trade Union's Federation has participated, without being registered, in the negotiation of the General Agreement for 2002-03 demonstrates that the new procedure does not put trade unions in a situation of dependency upon the executive bodies. In light of the above, the Government states, in its communication of 30 August, that the current wording of section 16 of the Act is in conformity with international standards and therefore does not need to be amended. However, in its communication of 12 July, the Government had indicated that the fact that the Act implies a distinction between the acquisition by a trade union of a legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of trade unions created certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers. In this respect, on 6 June 2002, a meeting of the National Social Partnership Council proposed to the Government to request the Ministry of Justice, in collaboration with representatives of trade unions and employers' organizations, to propose possible amendments to the Act.

148. The Committee takes note of this information. It notes with interest that, according to the current wording of section 16 of the Trade Unions Act, trade unions and confederations of trade unions acquire their legal personality from the moment of their creation. As concerns trade union registration, the Committee recalls that, in many countries, organizations are required to register; such legislation is not in principle incompatible with the Convention. However, problems of compatibility with the Convention may arise where, in practice, competent administrative authorities make excessive use of their powers and are encouraged to do so by vagueness of the relevant legislation. The Committee notes that the Government itself has acknowledged that the distinction between the acquisition by a trade union of a legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of a trade union creates certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers and that the National Social Partnership Council is of the opinion that section 16 needs to be amended. The Committee also notes from the complainant's communication that application of section 16 continues to pose practical difficulties for trade unions. The Committee also notes that the complainant formulated an amendment to section 16 of the Act. In the Committee's view, and on the basis of the information provided by both the complainant and the Government, the proposed amendment would be compatible with Convention No. 87. The Committee has previously emphasized the importance it attaches to the promotion of dialogue and consultation on matters of mutual interest between the public authorities and the workers' organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 924-928). The Committee therefore requests the Government to engage in full consultations with the social partners on the possible amendment of section 16 of the Act in order to resolve this issue to the satisfaction of all the parties concerned. It requests the Government to keep it informed in this respect.

Case No. 2075 (Ukraine)

149. The Committee last examined this case at its November 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 326th Report, paras. 168-170).

150. In a communication dated 7 June 2002, the Government repeats the information it previously provided according to which, following a ruling of 6 April 2000, the Supreme Court of Arbitration of Ukraine rejected the application made by "Solidarnost" to the Ministry of Justice to quash the decision of the Ministry concerning its registration. Following the ruling of 6 April 2000, "Solidarnost" once again filed the necessary registration documents with the Ministry of Justice on 26 April 2000. In accordance with section 16 of the Act on Trade Unions, their rights and safeguard of their activities, the registration authority carried out checks on the branches of the trade union and found that the documents submitted did not correspond to the status claimed. Registration was therefore refused.

151. The Committee deeply regrets that the Government has not provided any new information concerning this case and that while the complaint was lodged in March 2000, the complainant organization has still not been able to obtain its registration. The Committee recalls that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations. Therefore, the Committee 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. 2146 (Yugoslavia)

152. The Committee last examined this case at its meeting in March 2002 when it requested the Government to take the necessary steps to repeal all provisions of the Yugoslav Law on the Chamber of Commerce which would give rise to compulsory membership or financing. It further requested the Government to ensure that employers may freely choose the organization they wish to represent their interests in the collective bargaining process and that the results of any such negotiations would not be subjected to the approval of the legislatively constituted Chamber of Commerce (see 327th Report, paras. 884-898).

153. In a communication dated 6 June 2002, the complainant in this case, the Yugoslav Union of Employers, indicated that it had not yet received any communication from the Government on the steps it intended to take in accordance with the Committee's recommendation.

154. In a communication dated 2 September 2002, the Government indicates that intensive activities have been undertaken in recent months aimed at the adoption of the constitutional charter, which should define the attributions of the federal State. Once the constitutional charter is adopted, activities aimed at implementing federal regulations will be pursued.

155. The Committee takes due note of the information provided by the Government. Recalling the importance it attaches to the right of employers to establish and join the organization of their own choosing and to the voluntary nature of collective bargaining, the Committee expresses the firm hope that the Government will take the necessary steps in the very near future to repeal the provisions of the Yugoslav Law on the Chamber of Commerce which give rise to compulsory membership or financing and to ensure that employers may freely choose the organization they wish to represent their interests in the collective bargaining process without any interference by the legislatively constituted Chamber of Commerce. It requests the Government to keep it informed of the progress made in this regard.

Case No. 2081 (Zimbabwe)

156. The Committee last examined this case at its March 2002 meeting (see 327th Report, paras. 136-138) concerning the need to ensure that section 120(2) of the Labour Relations Act of 1985 is amended in line with freedom of association principles. On that occasion the Committee requested the Government to keep it informed of the outcome of the parliamentary debate on the Labour Amendment Bill.

157. In a communication dated 6 August 2002, the Government limited itself to indicating that it did not have new information on the case.

158. The Committee once again expresses the firm hope that section 120(2) of the Labour Relations Act of 1985 will be amended in line with freedom of association principles, including those enunciated in its conclusions during its first examination of this case (see 323rd Report, paras. 567-570). It again urges the Government to take the necessary measures to amend the legislation in this respect, and to keep it informed.

159. Finally, as regards Cases Nos. 1843 (Sudan), 1851 (Djibouti), 1854 (India), 1880 (Peru), 1890 (India), 1922 (Djibouti), 1930 (China), 1937 (Zimbabwe), 1942 (China/Hong Kong Special Administrative Region), 1952 (Venezuela), 1959 (United Kingdom/Bermuda), 1961 (Cuba), 1965 (Panama), 1973 (Colombia), 1996 (Uganda), 2014 (Uruguay), 2027 (Zimbabwe), 2031 (China), 2042 (Djibouti), 2043 (Russian Federation), 2051 (Colombia), 2053 (Bosnia and Herzegovina), 2067 (Venezuela), 2084 (Costa Rica), 2091 (Romania), 2102 (Bahamas), 2109 (Morocco), 2113 (Mauritania), 2120 (Nepal), 2124 (Lebanon), 2125 (Thailand), 2128 (Gabon), 2129 (Chad), 2135 (Chile), 2137 (Uruguay), 2139 (Japan), 2142 (Colombia), 2143 (Swaziland), 2148 (Togo), 2160 (Venezuela) and 2167 (Guatemala), the Committee requests the governments concerned to keep it informed of any developments relating to these cases. It hopes that these governments will quickly provide the information requested. In addition, the Committee has just received information concerning Cases Nos. 1785 (Poland), 1826 (Philippines), 1900, 1943, 1951, 1975, 2083, 2119, 2145 (Canada), 1925 (Colombia), 1991 (Japan), 2048 (Morocco), 2058 (Venezuela), 2116 (Indonesia), 2118 (Hungary), 2147 (Turkey) and 2165 (El Salvador), which it will examine at its next meeting.