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 6, 7 and 14 November 2003, under the chairmanship of Professor Paul van der Heijden.

2. The members of Guatemalan, American, Indian, French and Pakistani nationality were not present during the examination of the cases relating to Guatemala (Cases Nos. 2103 and 2179), United States (Case No. 2227), India (Case No. 2228), France (Case No. 2233) and Pakistan (Case No. 2242), respectively.

3. Currently, there are 114 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 28 cases on the merits, reaching definitive conclusions in 23 cases and interim conclusions in five cases; the remaining cases were adjourned for the reasons set out in the following paragraphs.

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

4. The Committee considers it necessary to draw the Governing Body's special attention to Cases Nos. 2090 (Belarus), 2258 (Cuba) and 2238 (Zimbabwe) because of the extreme seriousness and urgency of the matters dealt with therein.

New cases

5. The Committee adjourned until its next meeting the examination of the following cases: Nos. 2269 (Uruguay), 2270 (Uruguay), 2271 (Uruguay), 2273 (Pakistan), 2276 (Burundi), 2278 (Canada), 2280 (Uruguay), 2282 (Mexico), 2283 (Argentina), 2285 (Peru), 2286 (Peru), 2289 (Peru), 2290 (Chile), 2291 (Poland), 2292 (United States), 2293 (Peru), 2294 (Brazil), 2296 (Chile), 2297 (Colombia), 2298 (Guatemala), 2300 (Costa Rica), 2301 (Malaysia), 2302 (Argentina), 2303 (Turkey), 2304 (Japan) and 2305 (Canada), 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

6. The Committee is still awaiting observations or information from the governments concerned in the following cases: Nos. 1865 (Republic of Korea), 2111 (Peru), 2177 (Japan), 2183 (Japan), 2186 (China/Hong Kong Special Administrative Region), 2214 (El Salvador), 2215 (Chile), 2217 (Chile), 2222 (Cambodia), 2248 (Peru), 2253 (China/Hong Kong Special Administrative Region), 2254 (Venezuela), 2256 (Argentina), 2257 (Canada), 2265 (Switzerland).

Partial information received from governments

7. In Cases Nos. 2068 (Colombia), 2097 (Colombia), 2138 (Ecuador), 2200 (Turkey), 2203 (Guatemala), 2211 (Peru), 2224 (Argentina), 2239 (Colombia), 2241 (Guatemala), 2244 (Russian Federation), 2259 (Guatemala), 2267 (Nigeria), 2268 (Myanmar), 2274 (Nicaragua), 2279 (Peru), 2287 (Sri Lanka), 2295 (Guatemala) and 2299 El Salvador, 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

8. As regards Cases Nos. 1787 (Colombia), 2088 (Venezuela), 2189 (China), 2197 (South Africa), 2204 (Argentina), 2219 (Argentina), 2226 (Colombia), 2231 (Costa Rica), 2236 (Indonesia), 2245 (Chile), 2246 (Russian Federation), 2249 (Venezuela), 2251 (Russian Federation), 2264 (Nicaragua), 2266 (Lithuania), 2272 (Costa Rica), 2275 (Nicaragua), 2277 (Canada), 2281 (Mauritius), 2284 (Peru) and 2288 (Niger), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Withdrawal of a complaint

9. In Case No. 2260 (Brazil), the Single Confederations of Workers (CUT), which was the complainant in this case, declared in a communication of 12 August 2003, that it withdrew the complaint.

10. As regards Case No. 2232 (Chile), considering that the allegations lodged do not refer to issues relating to freedom of association, the Committee considers that this case does not call for further examination.

Urgent appeals

11. As regards Cases Nos. 2087 (Uruguay), 2096 (Pakistan), 2153 (Algeria), 2164 (Morocco), 2172 (Chile) and 2174 (Uruguay), 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.

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: Hungary (Case No. 2118), Russian Federation (Case No. 2216), Bosnia and Herzegovina (Case No. 2225), France (Case No. 2233), Pakistan (Case No. 2242) and Sri Lanka (Case No. 2255).

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

Case No. 2188 (Bangladesh)

13. The Committee examined this case on the merits at its November 2002 session (see 329th Report, paras. 194-216). On that occasion it requested the Government to provide a copy of the High Court decision concerning Ms. Taposhi Bhattachajee, a trade union leader who had been dismissed, and a copy of the final decision on her case; the Committee also requested the Government to take all measures to ensure that she be definitely reinstated in her job, and urged it to give appropriate directions to the management of the hospital where anti-union discrimination acts had taken place, so that warnings issued to ten members of the trade union executive committee be withdrawn.

14. In a communication dated 6 September 2003, the Government indicates that the High Court Division of the Supreme Court of Bangladesh has decided that Ms. Taposhi Bhattachajee had been dismissed without any lawful authority and that her dismissal had no legal effect; she was therefore reinstated and is now enjoying all her legal service benefits. However, the Government has appealed to the Appellate Division of the Supreme Court, where the case is pending.

15. The Committee takes note of this information. As regards the case of Ms. Taposhi Bhattachajee, the Committee strongly hopes that the Appellate Division of the Supreme Court will issue a judgement in conformity with freedom of association principles confirming the High Court decision reinstating her in her job with full benefits; it requests the Government to provide it with a copy of the judgement once it is issued. As regards the warnings issued to ten members of the trade union executive committee for acts which constitute legitimate trade union activities, the Committee urges once again the Government to give appropriate directions to the management of the Shahid Sorwardi Hospital so that all these warnings be withdrawn from their personal files, and to keep it informed in this respect.

Case No. 1992 (Brazil)

16. At its March 2003 meeting the Committee noted the information provided by the Government, particularly with regard to the reinstatement of 28 workers of the Post and Telegraph Enterprise (dismissed along with 26 other workers following a strike in September 1997) and expressed the hope that the pending judicial proceedings would be concluded without delay (see 330th Report, paras. 18-20).

17. In its communication dated 23 May 2003 the Government sent a chart detailing the status of the proceedings relating to the 54 dismissed workers which shows that, in the majority of cases, the judicial authority ordered the reinstatement of the dismissed workers and only refused reinstatement in a limited number of cases.

18. The Committee notes this information with interest.

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 November 2002 meeting (see 329th Report, paras. 19-21). On that occasion, the Committee expressed its regret that the Government had not settled these issues, more than three years after the filing of the complaint; it once again urged the Government to hold discussions without delay with the complainant organization with a view to settling the pending issues, and to keep it informed of developments.

20. In a communication of 19 May 2003, the Government indicates that the members of the National Council for Tripartite Cooperation were requested to provide information about any activity of the GMH. Based on the answers received, there is no information about such activity at national, sectoral or regional level. The issues about the unsettled financial obligations of the GMH due for current expenses, as well as some property issues, remain pending.

21. The Committee notes this information. Recalling that this complaint, which dates back to March 1998, involves very serious violations of freedom of association principles (i.e. acts by authorities which make it extremely difficult, if not impossible, for a trade union to function normally), the Committee once again urges the Government to hold, without delay, meaningful discussions with the complainant organization with a view to settling the issues of trade union premises and confiscation of trade union property of the GMH, and to keep it promptly informed of developments.

Case No. 2047 (Bulgaria)

22. The Committee last examined this case at its meeting in March 2003, where it expressed the hope that the regulation concerning trade union representativeness would be adopted rapidly so that a vote concerning the representativeness of PROMYANA and the Association of Democratic Syndicates (ADS) could take place in the near future, and requested the Government to provide it with a copy of the regulation in question (see 330th Report, paras. 21-23).

23. In a communication of 19 May 2003, the Government indicates that the relevant regulation on criteria of representativeness has now been drafted and is coordinated with the social partners within the National Council for Tripartite Cooperation; the text will be presented soon to the Council of Ministers and a translated version will be sent to the Committee once adopted.

24. The Committee notes this information. Recalling that this complaint was first filed in August 1999, the Committee hopes that the adoption process will be completed soon and that the representativeness vote will be held rapidly on that basis. It requests the Government to provide it with a copy of the relevant regulation once it is adopted and to keep it informed of the results of the vote.

Case No. 1943 (Canada/Ontario)

25. The Committee last examined this case, which concerns lack of impartiality of the process of arbitration, at its March 2003 meeting (see 330th Report, paras. 28-31). On that occasion, it stressed that chairpersons of arbitration boards should not only be strictly impartial but should also be seen to be so and urged the Government to take legislative measures to ensure that these principles were respected in the designation of arbitration boards and chairs, in order to gain and maintain the confidence of both sides in the system. The Committee requested the Government to keep it informed of developments and to provide it with a copy of the decision of the Supreme Court of Canada in this matter once it would be issued.

26. In a communication of 11 September 2003, the Government informed the Committee that the Supreme Court of Canada had rendered its decision on 16 May 2003, dismissing the appeal of the Ontario Ministry of Labour. The Court stated, inter alia: that labour arbitration as a dispute-resolution mechanism has traditionally and functionally rested on a consensual basis, with the arbitrator chosen by, or being acceptable to, both parties; that if the purpose of compulsory arbitration is to ensure that the loss of bargaining power through legislative prohibition of strikes is balanced by access to a fair and expeditious alternative system, the process must be perceived as neutral and credible in order to do so; and that neutrality, and the perception of neutrality, is bound up with an arbitrator's training, experience and mutual acceptability.

27. The Committee takes due note of that judgement and recalls, once again, that chairpersons of arbitration boards should not only be strictly impartial but also be seen to be so. The Committee thus urges the Government to take measures to ensure that these principles are respected in law and in practice in the designation of arbitration boards and chairs, in order to gain and maintain the confidence of both sides in the system. It requests the Government to keep it informed of developments.

Case No. 2151 (Colombia)

28. The Committee last examined this case at its March 2003 meeting when it made the following recommendations:

- the Committee requests the Government to investigate whether in the public institutions concerned in the present case the trade union immunity of trade union officials of the Institute for Urban Development (SINDISTRITALES and SINTRASISE) and the Bogotá Council (SINDICONCEJO) has been suspended by a court (as required by law) and, if that is not the case, to take steps to reinstate them in their posts without loss of pay and, if that is not feasible, to provide them with full compensation;

- as regards the other allegations regarding anti-union discrimination, namely: (a) the dismissal of SINTRABENEFICENCIAS officials for setting up a union in Cundinamarca District; and (b) the refusal to grant trade union leave and subsequent dismissal of SINTRASISE officials in the Transport Department, the Committee requests the Government to carry out an investigation in this matter and, if the allegations are found to be true, to take measures to reinstate the dismissed workers and ensure that the right to trade union leave is effectively enforced.

29. In its communications dated 21 and 25 March and 16 and 19 June 2003, the Union of Public Servants of the Districts and Municipalities of Colombia (UNES) alleges that, by virtue of Decree No. 1919 of 2002, the District Administration of Bogotá violated trade union agreements establishing certain advantages in respect of wages and benefits that have been recognized since 1992. The complainant organization furthermore states that despite the fact that Conventions Nos. 151 and 154 have been ratified, regulations for their application are yet to be established. As a result, public service workers are being denied the right to collective bargaining. The complainant adds that the mayor of Bogotá refuses to enter into any kind of negotiation.

30. In its communication of 11 March 2003, the Trade Union of Officials of the Ministry for Culture of Colombia alleges that the mass dismissal of 142 officials of the Ministry for Culture, 135 of which were members of the trade union (all of the musicians forming the National Symphony Orchestra and the National Symphony Band) took place as part of restructuring processes ordered by Decree No. 003210 of 27 December 2002. Nonetheless, the complainant organization recognizes that the Decree ordered the payment of all compensation provided for in the collective agreement, and that it respected the trade union immunity of officials.

31. As regards the dismissal of trade union officials of various public bodies, in its communications dated 31 January, 5 February, 26 March, 28 May and 12 June 2003, the Government states that it acted in accordance with the law and respected the constitutional rights of these officials. The Government provides details of legislation and jurisprudence relating to the legal protection of trade union officials. The Government indicates that when judicial authorization to dismiss trade union officials is not requested, those affected are responsible for initiating proceedings for their reinstatement or compensation. The Government adds that it has written to the Territorial Directorate of Cundinamarca to ascertain whether any administrative labour inquiries have been initiated against the district for the dismissal of workers with trade union immunity.

32. With regard to the allegations relating to the dismissal of SINTRABENEFICENCIAS officials for setting up a trade union in the Cundinamarca district, the Government states that the administrative inquiry initiated by the Territorial Directorate of Cundinamarca is being handled by the Coordination Office for the Inspection and Surveillance Group, which will issue the corresponding decision.

33. With reference to the refusal to grant trade union leave and the subsequent dismissal of SINTRASISE officials in the Transport Department, the Government states that the Ministry of Labour and Social Security initiated administrative labour proceedings, and that the head of the Inspection and Surveillance Division of the Regional Labour Directorate of Santa Fe de Bogotá issued resolution No. 000801 of 31 March 1998 stating that there was no evidence that the Department of Traffic and Transport of Santa Fe de Bogotá had violated labour standards, and that action for recourse (reposición) and appeal had been rejected.

34. As regards the dismissal of trade union officials of various public bodies related to the Institute for Urban Development (SINDISTRITALES and SINTRASISE) and Bogotá Council (SINDICONCEJO) without the corresponding suspension of trade union immunity, the Committee observes that the Government merely indicates that it has written to the Territorial Directorate of Cundinamarca to ascertain whether any administrative labour inquiries have been initiated against the district of Bogotá for the dismissal of workers with trade union immunity. The Committee requests the Government to provide it with information on inquiries that have been initiated, as well as the results of these inquiries.

35. As regards the allegations relating to the dismissal of SINTRABENEFICENCIAS officials for setting up a trade union in the Cundinamarca district, the Committee notes that the Government states that the administrative inquiry initiated by the Territorial Directorate of Cundinamarca is being handled by the Coordination Office for the Inspection and Surveillance Group, which will issue the corresponding decision. The Committee requests the Government to provide it with a copy of this decision.

36. With regard to the refusal to grant trade union leave and further dismissals of SINTRASISE officials in the Transport Department, the Committee notes that according to the Government, action for recourse (reposición) and appeal has been rejected. The Committee requests the Government to send copies of the corresponding resolutions.

37. With reference to the allegations made by the Trade Union of Officials of the Ministry for Culture of Colombia, the Committee observes that, in accordance with the comments made by the complainant organization itself, the Decree which provided for the restructuring of the National Symphony Orchestra and the National Symphony Band also ordered the recognition and payment of all compensation established in agreements relating to the unilateral termination without just cause of individual contracts of employment which affected all the workers of these bodies, and that the trade union immunity of officials was respected. Therefore, the Committee will not proceed with the examination of these allegations.

38. However, the Committee regrets to observe that the Government has not responded to the new allegations concerning the refusal of the mayor of Bogotá to bargain collectively, and the lack of regulations governing the right to collective bargaining in the public service, despite the fact that Colombia has ratified Conventions Nos. 151 and 154. The Committee requests the Government to take measures to promote collective bargaining in the Bogotá mayor's office. With regard to the lack of regulations governing the right to collective bargaining in the public service, the Committee observes that this issue has been dealt with in previous cases. In this regard, the Committee reiterates that, while some categories of public servants must have already enjoyed the right to collective bargaining under Convention No. 98, this right is recognized in general for all public servants as of the ratification of Convention No. 154 on 8 December 2000. In these circumstances, recalling that special modalities of application may be fixed with regard to collective bargaining in the public service, the Committee requests the Government to take the necessary measures to ensure that the right of public servants to collective bargaining is respected in accordance with the provisions of the Convention which has been recently ratified (see 325th Report, Case No. 2068, para. 323). Lastly, the Committee observes that the Government has not responded to the alleged non-compliance with trade union agreements establishing certain advantages in respect of wages and benefits that have been recognized since 1992. The Committee requests the Government to send its observations in this respect.

Case No. 2237 (Colombia)

39. The Committee last examined this case at its meeting in June 2003 (see 331st Report, paras. 308-321). On that occasion the Committee requested the Government: (a) to ensure that the workers in the Hilazas Vanylon Enterprise SA were not discriminated against in respect of wages because of their trade union membership, and to investigate whether a number of members of SINTRA IL had had to renounce their membership as a result of the aforementioned wage discrimination; (b) to take steps to see that an investigation was carried out into the decline in the labour situation of the trade union official, Ms. Lucila Mercado Ladeuth, and, if the alleged discrimination were proven, to rectify the situation immediately; and (c) with regard to the uncollected fine imposed on the enterprise for refusing entry to the Labour Inspectorate, to take steps to apply the labour legislation provisions and enforce the fine without delay.

40. In a communication dated 7 September 2003, the Government reports that, with regard to the decline in the situation of Ms. Lucila Mercado Ladeuth, the official concerned has come to a conciliatory agreement with the enterprise and, in consequence, abandoned the legal action she had brought before the Territorial Directorate for Labour and Social Security of Atlántico. With regard to the fine imposed on the Hilazas Vanylon Enterprise SA for refusing entry to the Labour Inspectorate, the Government reports that this has now been enforced.

41. The Committee takes note of this information. However, it regrets that the Government has not reported whether investigations have begun to determine whether a number of members of SINTRA IL have had to renounce their membership as a result of wage discrimination on the part of the enterprise because of their trade union membership. The Committee requests the Government to take steps to ensure that this investigation is carried out without delay and to keep it informed in this respect.

Case No. 2178 (Denmark)

42. The Committee examined this case on the merits at its March 2003 session. This complaint concerns the adoption of a legislative amendment that altered the existing legal and contractual regime concerning part-time work in Denmark (which previously was mostly left to collective bargaining) and which prohibited the social partners from concluding collective agreements in the future restricting any worker's preferences to work part time. The Committee invited the Government to resume thorough consultations on part-time work issues with all parties concerned, with a view to finding a negotiated solution that would be acceptable to all parties and in conformity with Conventions on freedom of association and collective bargaining, ratified by Denmark, and requested it to keep it informed of developments (see 330th Report, para. 586).

43. In a communication of 8 September 2003, the Government states that the Minister of Employment has held a meeting with the Chairman of the Confederation of Danish Trade Unions, following which it was concluded that it would not be possible to achieve a negotiated solution mutually acceptable to all parties. Nevertheless, the Minister has stated, publicly and in Parliament, his willingness to pursue discussions with social partners, with the aim of reaching a solution that ensures that employers and employees who wish to do so have the right to enter into agreements on part-time work. The Government reiterates that the Act respects current collective agreements which contained restrictions to access to part-time work, until such agreements can be denounced: this provides social partners with the opportunity to create special part-time work procedures or schedules that reflect individual needs and local labour market conditions.

44. The Committee notes this information. Recalling that, when making its recommendation, it had taken into account the wide social consensus that previously existed in this respect and which had led to negotiated agreements between the social partners, and had considered that such a unilateral policy reversal by the Government would only have been justified in a situation of acute crisis or emergency, the Committee requests the Government once again to pursue thorough consultations on part-time work issues with all parties concerned, with a view to finding a negotiated solution that would be acceptable to all parties and in conformity with Conventions on freedom of association and collective bargaining ratified by Denmark.

Case No. 2165 (El Salvador)

45. At its March 2003 meeting, the Committee requested the Government to examine jointly with the trade union organizations SITINPEP and FESTRASPES the situation of certain members of these organizations, (which carry out their activities in the National Institute for Public Employees' Pensions - INPEP) who allege that they have been prejudiced for trade union reasons, with a view to their reinstatement in their jobs or the payment of compensation (see 330th Report, para. 84). The Government had indicated that the staff reductions were due to financial reasons.

46. In its communication of 2 September 2003, the Government states that the redundancies in INPEP were not motivated by trade union membership or trade union activities and that since this case ended there have been no claims relating to trade union members that may have been prejudiced.

47. The Committee notes this information.

Case No. 2208 (El Salvador)

48. At its March 2003 meeting, the Committee made the following recommendations on the issues that remained outstanding (see 330th Report, para. 606):

(a) The Committee requests the Government to: (1) ask the judicial authority to give a ruling promptly in respect of the dismissals of 11 union officers and 30 union members at Lido, S.A., so that, if measures need to be taken to correct the situation, they can be genuinely effective; and (2) if the judicial authority considers that the dismissals were carried out for anti-union motives - specifically for participation in an eight-hour work stoppage - take urgent measures to reinstate the trade union officials and workers dismissed, with the payment of outstanding salaries in cases where this has not already been done; or if reinstatement is not possible to guarantee that adequate compensation is awarded to the dismissed workers. The Committee requests the Government to keep it informed of developments in the situation with regard to both matters.

(b) The Committee considers that, if strikes are prohibited whilst a collective agreement is in force, this restriction must be compensated for by the right to have recourse to impartial and rapid mechanisms, within which individual or collective complaints about the interpretation or application of collective agreements can be examined. The Committee requests the Government to indicate whether such mechanisms exist in the national legislation and to transmit a copy of the collective agreement in force at Lido, S.A.

(c) The Committee requests the Government to keep it informed about the fulfilment of the agreement relating to returning the relevant union dues to the Company Union of Lido, S.A.

(d) With regard to the allegation that Lido, S.A. used coercion to pressure union members into resigning from the union (according to the complainant organization, 25 workers have resigned in this context), the Committee requests the Government to undertake an investigation and, should the allegations be substantiated, to take measures against those responsible for such actions so as to prevent them from reoccurring in the future.

(e) With regard to the alleged denial of access to the company's premises of the union's executive board, the Committee recalls that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management and requests the Government to take the necessary measures to guarantee that this principle is respected within the company in question.

(f) The Committee requests the Government to ensure that Lido, S.A. is consulted through the national employers' organizations in respect of the allegations made in this case.

49. In its communication of 2 September 2003, the Government states with regard to the dismissals of trade union members at Lido, S.A. that it has sent an announcement to the President of the Supreme Court of the Committee's recommendations, recalling at the same time that the judiciary is independent. The Government adds that the 30 workers dismissed have been paid compensation in accordance with the Labour Code and the collective agreement in October and November 2002 and that this has been confirmed by the General Secretary of the trade union of the enterprise.

50. With regard to recommendation (b) of the Committee, the Government indicates that the mechanisms provided for in the legislation for the peaceful resolution of labour disputes are the labour courts, conciliation and arbitration.

51. With regard to recommendation (c) of the Committee, the Government states that the payment to the union of members' trade union dues has taken place normally since 28 May 2003, when the trade union requested that the Ministry of Labour take steps with the enterprise with regard to this matter.

52. With regard to recommendation (d) of the Committee, the Government states that since 3 July 2002 (the date on which the trade union and the enterprise reached a conciliatory agreement at the General Labour Directorate) there have been no claims of coercion by the employer to pressure trade union members into resigning from the union. The allegations prior to this date are not backed by clear and convincing proof.

53. With regard to the recommendation relating to access of trade union representatives to workplaces, the Government states that it is making significant efforts and holding conciliatory meetings so that the parties can reach an agreement that will allow the trade union officials to be reinstated. Although reinstatement has still not been carried out, it is anticipated that this will take place gradually during September, subject to the agreement of both parties with regard to the specific date and the way in which this will be carried out.

54. The Committee notes with interest the information provided by the Government. The Committee is still awaiting the legal ruling on the dismissals of 11 union officers and 30 union members at Lido, S.A. The Committee also notes that the parties, with the participation of the Ministry of Labour, have held meetings and that it was anticipated that the reinstatement of trade union officials would begin in September 2003. The Committee requests the Government to keep it informed in this respect.

Case No. 1888 (Ethiopia)

55. The Committee examined this case, which concerns very serious allegations of violations of freedom of association, at its March 2003 meeting. The Committee made the following recommendations on the issues that were still pending (see 330th Report, paras. 643-662):

(a) Noting with regret that, despite repeated requests, the Government has not provided any new information on the killing of Mr. Assefa Maru, the Committee requests the Government once again to hold an independent inquiry into this matter and to keep it informed of developments.

(b) The Committee requests the Government to amend its legislation so that teachers, like other workers, have the right to form organizations of their own choosing and to negotiate collectively, and to keep it informed of developments in this respect, including the current status of legislative reform as regards trade union pluralism and the labour rights of civil servants.

(c) The Committee requests the Government to provide its observation concerning the incidents of February and September 2002 during which trade union meetings were delayed or interfered with, and ETA representatives were arrested and detained.

(d) The Committee requests once again the complainants to provide updated information on ETA leaders and members still aggrieved by the Government's actions as regards detention, harassment, transfers and dismissals due to trade union membership or activities.

(e) The Committee recalls that the Government may avail itself of the technical assistance of the Office on the matters raised in the present case.

56. In its communication of 15 May 2003, the Government reiterates its previous observations concerning the killing of Mr. Assefa Maru and states that the result of an inquiry previously conducted has established that Mr. Maru died in a shoot out after he had resisted arrest by firing on police. The Government states that it has no basis to reopen the case and the circumstances of Mr. Maru's death do not show any relationship with his earlier position in the leadership of ETA.

57. Concerning the legislative amendments, the Government states that it has benefited from the ILO's technical assistance and that the draft amendments are being reviewed for the second time by the Council of Ministers, before final consideration by Parliament.

58. Concerning the alleged incidents of delay or interference with trade union meetings in February and September 2002, the Government states that the Ministry of Labour and Social Affairs has carried out an inquiry concerning these allegations submitted by the complainants. According to the Government, the alleged ETA meeting in Addis Ababa in September 2002 never took place and consequently, there was no interference. With regard to the February 2002 ETA Awassa branch conference, the Government states that the conference was convened as scheduled and denies any interference from the regional authorities. Furthermore, the Government points out that the right of organization and assembly is guaranteed by the constitution.

59. The Committee deplores the Government's persistent refusal to conduct an independent investigation regarding the killing of Mr. Maru. It recalls once again that when trade union leaders or trade unionists are killed, seriously injured or disappear, it is imperative that independent judicial inquiries be instituted in order to shed full light, as rapidly as possible after the facts, to determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 51) and that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity and which is extremely damaging to the exercise of trade union rights (Digest, ibid., para. 55).

60. The Committee notes with interest that the Government has benefited from the technical assistance of the ILO Regional Office in Addis Ababa as regards the amendments of the labour legislation. The Committee requests the Government to provide it with a copy of the draft amendments prior to its consideration by Parliament and to keep it informed of developments.

61. Lastly, as regards the alleged incidents of February and September 2002 during which trade union meetings were delayed or interfered with, and ETA representatives were arrested and detained, the Committee takes note of the information provided by the Government. The Committee wishes to emphasize the fact that although the freedom of association principles are enshrined in the national constitution, the Government needs to ensure that the practice is in accordance with legislation. The Committee further recalls that all appropriate measures should be taken to guarantee that trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind (Digest, ibid., para. 36). The Committee requests the Government to ensure that these principles are respected.

Case No. 2128 (Gabon)

62. The Committee last examined this case at its June 2002 meeting. On this occasion, the Committee requested the Government to take legislative or other measures as soon as possible to grant legal recognition and effective protection to trade union delegates in enterprises (see 328th Report, para. 264).

63. In a first communication dated 11 September 2002, the Government states that it would like to have sufficient time to consult Parliament with the view to taking legislative measures to grant legal recognition and effective protection to trade union delegates in enterprises. In a second communication dated 27 August 2003, the Government states that the case has made no significant progress. The Government states that the circular letter of 7 May 2001 of the Ministry of Labour, which called for a suspension of trade union delegates' activities in enterprises, was annulled and, because of this, was not put into effect. The Government adds that, in accordance with Article 4 of Convention No. 98, it has referred the definition of assignment, the length of mandate and the way in which trade union delegates are assigned to collective agreements. In this way, the Government notes that it is appropriate to renegotiate the common body of the collective agreements, in force for 21 years. The Government adds that trade union delegates continue to carry out their trade union activities within their respective enterprises undisturbed.

64. The Committee recalls that the issue in the present case arises from the fact that the Labour Code makes the legal existence of trade union delegates, and, therefore, their protection, dependent on the negotiation of a collective agreement. None of the relevant collective agreements contain any provision in this respect. This omission has not prevented trade union delegates from being present in enterprises in practice. Moreover, the Committee recalls that the circular letter of 7 May 2001, basing itself on the Labour Code, stated that, in the absence of relevant provisions in the collective agreements, the presence of trade union delegates in enterprises was illegal.

65. In the circumstances, the Committee notes with interest the information provided by the Government on the withdrawal of the circular letter and on the continuation of activities by trade union delegates. However, the Committee notes that the legal existence of trade union delegates remains precarious. Also, while noting the referral of the issue to collective bargaining, the Committee urges the Government to take legislative measures without delay to grant legal recognition and effective protection to trade union delegates and to keep it informed of the progress made in this regard.

Case No. 2212 (Greece)

66. The Committee examined this case, which concerns the unilateral modification by the Government of an agreement on seafarers' pensions and the issuance of a civil mobilization order which put an end to a seafarers' strike, at its March 2003 meeting (see 330th Report, paras. 721-755). On that occasion, it took note of the fact that the civil mobilization order had been lifted and requested the Government to undertake negotiations with the complainant as soon as possible in full knowledge of all the relevant facts, in order to reach agreement between the parties on a time schedule for the readjustment of seafarers' pensions. In its communication dated 22 July 2003, the Government states that this issue has been settled through the enactment of Act No. 3075/2002 (Official Gazette 297/5 of 5 December 2002) which increases seamen's pensions to a level never known before in the country.

67. The Committee takes note of this information. The Committee notes that the Government does not indicate whether any negotiations took place with the complainant pursuant to the Committee's recommendations. Before reaching definitive conclusions in this case, the Committee invites the complainant to provide comments on these matters.

Cases Nos. 2017 and 2050 (Guatemala)

68. At its November 2002 meeting, the Committee formulated the following conclusions and recommendations on the pending questions (see 330th Report, paras. 88-99) and on the questions on which the Government had sent information since the previous examination of the case:

- with respect to the La Exacta farm, the Committee had requested the Government to ensure compliance with the court orders on reinstatement of the workers dismissed from the La Exacta farm;

- as regards the closure of Cardiz S.A. company following the establishment of a trade union in the company and the detention of the workers who remained on company premises to prevent the removal of company equipment, the Committee had asked the Government to send information about these allegations and, more precisely, about the reasons for closing the Cardiz S.A. company;

- the Committee notes that the Government has sent only vague information on the issues relating to the La Aurora (the National Zoological Park refuses to negotiate a new collective agreement with the trade union and has encouraged a solidarity association, pressuring workers to join this), and it requests the Government to send further information on these allegations.

69. In a communication of 3 September 2003, the Government states, with regards to the La Exacta farm, that on 9 June 2003 a basic agreement was established to reach a friendly agreement to resolve the issue soon, signed by the president of COPREDEH and representatives of the workers who are injured parties, the Centre for Legal Action for Human Rights (CALDH) and the Trade Union of Workers of Guatemala (UNSITRAGUA). The relevant aspects of the agreement refer to the need to reach an agreement on financial compensation within a period not exceeding five months and to endeavour to establish other means of compensation that will benefit the families of the farm workers.

70. With regard to the closure of the Cardiz S.A. company, the Government states that when the General Labour Inspectorate became involved, the company was on the point of closing down as its main international client had cancelled its buying and garment manufacture contracts. Subsequently, the company was obliged unilaterally to suspend all staff labour contracts. The General Labour Inspectorate sent the file to the relevant court for the penalty indicated to be imposed. The case is currently before the courts.

71. With regard to the National Zoological Park, La Aurora, the Government states that between July 2000 and June 2002 seven files were opened and seven settlements were decided. The most recent file dates back to 2002 and, following this, no new requests for intervention have been received.

72. The Committee notes the information sent by the Government with regard to the basic agreement established to reach a friendly agreement to resolve the issue soon with regard to the La Exacta and/or San Juan El Horizonte farm, the relevant aspects of which refer to the need to reach an agreement on financial compensation within a period not exceeding five months and to establish other means of compensation that will benefit the families of the farm workers. Given that the period of five months has nearly elapsed, the Committee requests the Government to keep it informed of developments and to specify whether the agreement mentioned includes the reinstatement of the workers who were dismissed, with regard to whom legal orders for reinstatement were issued.

73. The Committee notes the information sent by the Government with regard to the reasons for the closure of the Cardiz S.A. company; i.e. that its main international client cancelled its buying and garment manufacture contracts, which led to the company being forced unilaterally to suspend all staff labour contracts. The Committee also notes that the case is currently before the courts and requests the Government to keep it informed of the outcome of the proceedings in progress.

74. With regard to the National Zoological Park, La Aurora, the Committee notes that the Government refers to seven files and an equal number of settlements that took place between July 2000 and June 2002, that the most recent file dates back to 2002 and that no further requests for intervention were received following this. The Committee notes that the Government does not indicate whether this information relates to the allegations submitted, i.e. that the National Zoological Park, La Aurora, refuses to negotiate a new collective agreement with the trade union and has encouraged a solidarity association, pressuring workers to join it. The Committee requests the Government to provide clarifications on these issues.

75. Moreover, the Committee regrets that the Government has sent no information on the issues that remained outstanding from the previous examination of the case and urges the Government to send the information and observations requested with regard to the following without delay:

- The Committee regrets that the Government has not sent its observations on the allegations concerning the kidnapping, assaults, and threats against the trade unionists of the Santa María de Lourdes farm, Walter Oswaldo Apen Ruiz and his family. The Committee requests the Government to send its observations on this allegation and to ensure that the safety of the trade union member, which has been threatened, is guaranteed;

- The Committee regrets that the Government has not sent information on the allegations relating to the murder of trade union members Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzales, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm. The Committee emphasizes once again the seriousness of the allegations and urges the Government to send information in this respect without delay;

- With regard to the murder of trade union member Baudillo Amado Cermeño Ramírez, the Committee requests the Government to send it a copy of the ruling handed down in this respect;

- With regard to the alleged threats against Miguel Angel Ochoa and Wilson Armelio Carreto López, the Committee notes the Government's statement that these persons are not members of any trade union and that no complaints in respect of threats have been sent to the Attorney-General, and it invites the complainant organizations to send comments on these observations;

- With regard to the dispute involving the Banco de Crédito Hipotecario Nacional, the Committee takes note that a negotiating committee has been set up for all the pending issues and observes that the suspension of trade union leave had been initially resolved but that the complainant organization has now alleged that it was suspended again on 26 July 2002. The Committee stresses the importance of complying with judicial rulings that prohibit dismissals without legal authorization, hopes that the negotiating committee can quickly find a solution to the dispute and requests the Government to keep it informed of progress in that committee;

- With regard to the allegations of dismissal of the founders of the trade union formed in 1997 in Hidrotecnia S.A., the Committee urges the Government to institute, without delay, an investigation into these allegations and to keep it informed of developments;

- With regard to 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), the Committee requests the Government to ensure that anti-union dismissals do not take place and to investigate the motives for the dismissals that have occurred, to ensure respect for the collective agreement and to keep it informed of developments in the situation;

- With regard to the Tanport S.A. company, the Committee requests the Government to inform it of the result of the legal proceedings under way to protect the money owed to UNSITRAGUA members who were dismissed because of the company's closure;

- With regard to the Ace International S.A. assembly plant, the Committee requests the Government urgently to communicate the court rulings handed down on the serious allegations of discrimination and intimidation;

- Finally, the Committee requests the Government to send its observations on the new allegations, according to which the employer-controlled trade union SITRACOBSA (a fact admitted by the Government) opposed the decision of the Ministry of Labour to reactivate workers belonging to the legitimate trade union (SITECOBSA) of the Corporación Bananera S.A. company.

76. The Committee has just received a communication from the Government dated 27 October 2003 replying to certain allegations presented recently by UNSITRAGUA. The Committee will examine this reply at its next meeting.

Case No. 2230 (Guatemala)

77. At its March 2003 meeting, the Committee formulated the following recommendations on the issues that remained outstanding (see 330th Report, para. 834):

Deploring the attitude of the municipality of Esquipulas for dismissal of 42 trade unionists without the judicial authorization provided for in the Labour Code, as well as for refusing to reinstate the workers in their jobs despite warnings from the administrative authority, the Committee observes that this case has been submitted to the judicial authority and expresses the hope that the 42 trade unionists will be reinstated in their jobs very soon. The Committee requests the Government to inform it of the ruling that is handed down, as well as the text of Decree No. 35-96 of the Congress on the basis of which the dismissals were pronounced.

78. In its communication of 29 August 2003, the Government states that on 22 January 2003, it intervened in the municipality of Esquipulas because of the complaint of the dismissal of 42 workers lodged against the municipality, the relevant proceedings were carried out and the reinstatement of the workers was ordered, an order which was not implemented. It repeats that the municipality in question was fined 9,000 quetzales for the labour infringement committed. In its communication dated 27 October 2003, the Government states that the workers have not accepted a proposal by the employer to pay all benefits due, as noted by the Labour Inspector.

79. The Committee notes the information sent by the Government. The Committee notes that this case was submitted to the judicial authority. The Committee expresses, once again, its hope that the 42 trade unionists will be reinstated in their jobs very soon and requests the Government to inform it of the ruling that was handed down in this respect.

Case No. 2118 (Hungary)

80. The Committee last examined this case at its March 2003 meeting. It requested the Government to keep it informed of the outcome of the legal proceedings pending before the Industrial Court and the Constitutional Court with regard to the constitutionality of section 33 of the Labour Code. In this respect, the Committee had recalled (see 330th Report, paras. 103-116) that it might be difficult in practice for trade unions to attain a percentage of 65 per cent (individually) or 50 per cent (jointly) as required by section 33 in order to be able to engage in collective bargaining, especially at the level of the enterprise or branch of activity. Problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent; a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members (see General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, 1994, para. 241). Moreover, the Committee requested the Government to take all necessary measures to ensure that the instructions of the Deputy General Manager for Public and Labour Relations were repealed.

81. In a communication dated 29 May 2003, the Government states that the Industrial Court has declared section 33 of the Labour Code unconstitutional. However, this issue of the constitutionality of section 33 is still pending before the Constitutional Court. The Government's view is that section 33 is not unconstitutional and that it is in line with Convention No. 98.

82. The Committee requests the Government to keep it informed of the outcome of the proceedings. The Committee hopes that section 33 will be declared unconstitutional by the Constitutional Court and, otherwise, requests the Government to take all necessary measures as soon as possible to amend section 33 of the Labour Code so as to bring it in line with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee draws again the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

83. With regard to the instructions of the Deputy General Manager for Public and Labour Relations according to which trade union activities had to be continuously monitored, formal and informal conversations reported and any programme or events organized by the trade union brought to the employer's knowledge, the Committee notes that such instructions have been repealed by Internal Order Gy. 7-76/2002 of the Hungarian Railway Company. The Committee requests the Government to provide a copy of the Internal Order.

Case No. 1854 (India)

84. The Committee last examined this case at its March 2003 meeting, where it noted with regret that judicial hearings had still not taken place, eight years after the murder of Ms. Ahilya Devi, and expressed the hope that substantial progress could be noted in the very near future. The Committee requested the Government to provide it with the judgement of the court as soon as it is issued and to keep it informed of developments concerning the arrest of two absconding parties (see 330th Report, paras. 117-119).

85. In communications dated 23 May and 5 November 2003, the Government indicates that the case is pending before the Kishenganj District Magistrate Court, Bihar. Five witnesses have been examined, respectively on 7 April and 1 May 2003, and the case is scheduled for a further hearing on 20 May 2003. No witnesses were presented for cross-examination at a hearing on 17 September 2003; action as directed by the court has been initiated. The Government does not provide any indication on the arrest of the two absconding accused parties.

86. The Committee notes this information. While noting that the trial has now started, albeit some eight years after the murder (in August 1995) of Ms. Ahilya Devi, a trade unionist who was trying to organize rural workers, the Committee strongly hopes that the proceedings will be concluded soon in this extremely serious case. The Committee requests the Government to provide it with the judgement of the court as soon as it is issued, and requests it once again to keep it informed of developments concerning the arrest of the two absconding accused parties (Messrs. Shri Munna Punjabi, alias Jai Prakash, and Shri Shrawan Giri).

Case No. 2158 (India)

87. The Committee last examined this case at its June 2003 meeting where it requested the Government to provide information on: the murder of trade union leader Ashique Hossain; the actual situation of the complainant organization; the proceedings against eight persons at the Pataka Biri Manufacturing Company; the investigation into allegations of serious acts of anti-union discrimination; the circumstances under which two apprentices were dismissed; the progress of proceedings before the Calcutta High Court concerning anti-union discrimination (see 331st Report, paras. 33-42).

88. In a communication dated 20 May 2003, the Government indicates that the eight workers at the Pataka Biri Manufacturing Company had been hired on a contractual basis for a one-year period and that their contract automatically expired at the end of that period. Only one of the eight workers appeared before the Deputy Labour Commissioner in charge of conciliation proceedings, and stated that he had never worked in the company. There is no room for further adjudication on this issue as neither the workers involved nor the trade union seems to be interested in pursuing the matter further.

89. The Committee notes this information. It requests the Government to provide its observations on the remaining aspects of this case, namely:

- the conduct of an independent judicial inquiry concerning the murder of the trade union leader Ashique Hossain;

- the actual situation of the complainant organization;

- the progress of the investigation into allegations of serious acts of anti-union discrimination;

- the circumstances under which two apprentices were dismissed; and

- the progress of proceedings before the Calcutta High Court concerning anti-union discrimination.

Case No. 2198 (Kazakhstan)

90. The Committee examined this case at its November 2002 meeting (see 329th Report, paras. 653-687) and on that occasion it formulated the following recommendations:

- Recalling the importance which it attaches to the obligation for all parties to negotiate in good faith, the Committee requests the Government to adopt the necessary measures to ensure that the Tengizchevroil company bargains in good faith with the Trade Union of TCO Workers in accordance with the legislation on the deduction of trade union dues and to keep it informed in this regard.

- The Committee requests the Government to ensure that reasonable access to workplaces of trade union members at Tengizchevroil is ensured.

- Regarding the allegations of the forming of "yellow" trade unions at Tengizchevroil, the Committee requests the Government to initiate the relevant inquiries into these allegations and to keep it informed of the outcome.

- The Committee urges the Government to take all the necessary measures without delay to ensure that the TCO administration withdraws the instructions contained in the Manual, which provide that the HRM labour relations coordinator shall be present at all meetings of trade union representatives and workers at TCO and that representatives of the administration of TCO may also attend these meetings, and that the Trade Union of TCO Workers be guaranteed the right to carry out its legitimate trade union activities, in particular the right to hold meetings without interference from the management. The Committee requests the Government to keep it informed of any measures taken to that.

- The Committee requests the Government and the complainant organization to keep it informed of the outcome of the proposed trade union conference.

91. In its communication of 21 May 2003, the Government states that there are currently three associations representing workers at the Tengizchevroil company. It further states that the management of the undertaking has carried out a survey among workers to ascertain trade union membership. According to the survey, 9 per cent are not members of any organization, 85 per cent of the workers belong to the Workers' Association (a non-trade union association), 5 per cent are members of the Independent Trade Union and only 1 per cent consider themselves to be members of the complainant organization. The Government further states that a collective agreement for 2003-05 was concluded at the enterprise and that negotiations with the management involved all workers' organizations. The collective agreement was signed on behalf of the Tengizchevroil workers by the Tengizchevroil Workers' Association and the Independent Trade Union. Finally, the Government states that a new chairperson of the Trade Union Of TCO Workers was recently elected and that the management of the company is giving help and support to the new chairperson in order to ensure that the union can continue to operate. The Government concludes by stating that no obstacles to the activities of trade union organizations and no complaints have been received from workers or members of the company unions.

92. The Committee notes the Government's communication. As concerns trade union membership at the Tengizchevroil company, the Committee notes that according to the survey conducted by the management of the undertaking, the complainant organization represent only 1 per cent of workers. The Committee observes, from the complainant's initial allegations, that in April 2002, it represented 973 workers out of 2,625 employed by the enterprise. The Committee requests the Government to provide clarifications on this matter and trusts that any survey in this regard is conducted by an independent body.

93. The Committee further notes the Government's statement concerning the new collective agreement. The Committee notes that although the complainant organization has also participated in the negotiations, it is not a signatory of the collective agreement contrary to the two other organizations. The Committee notes that the complainant had previously alleged that the organizations, signatories of the new collective agreements are "yellow" trade unions and are more suitable to the employer. The Committee therefore regrets that no information is provided by the Government as to whether relevant independent inquiries into the allegations of creation of a "yellow" trade unions were conducted. The Committee once again requests the Government to provide information in this respect.

94. The Committee also regrets that no information is provided as concerns the Committee's recommendations to take the necessary measures to ensure that the Tengizchevroil company bargains in good faith with the Trade Union of TCO Workers in accordance with the legislation on the deduction of trade union dues and that a reasonable access of trade union members to workplaces is ensured to the complainant organization. The Committee requests the Government to keep it informed in this respect. Furthermore, the Committee once again urges the Government to take all the necessary measures without delay to ensure that the TCO administration withdraws the instructions contained in the manual, which provide that the HRM labour relations coordinator shall be present at all meetings of trade union representatives and workers at TCO and that representatives of the administration of TCO may also attend these meetings, as well as that the Trade Union of TCO Workers be guaranteed the right to carry out its legitimate trade union activities, in particular the right to hold meetings without interference from the management.

Case No. 2124 (Lebanon)

95. The Committee last examined this case at its June 2002 meeting, where it requested the Government to ensure that the principles of neutrality and non-interference by the authorities in the internal affairs of trade unions were respected and reflected in national legislation, so that in future, administrative intervention in a manner which might affect the course of trade union elections might be avoided. The Committee also requested the Government to avoid having recourse to decrees allowing interference by the authorities and to keep it informed of any steps taken in this regard (see 328th Report, para. 463).

96. In a communication of 25 August 2003, the Government indicated that a dispute had broken out in March 2001 between the complainant organization and the administration of the General Confederation of Workers with regard to elections within the latter organization. The dispute was heard by the Council of State. Following this, reconciliation took place and the complainant organization withdrew the complaint it had lodged with the national judicial authorities.

97. While noting this information, the Committee hopes that, in the future, the Government will exercise great restraint in relation to intervention in the internal affairs of trade unions, so that it should not do anything that might seem to favour one group within a union at the expense of another.

Case No. 2132 (Madagascar)

98. The Committee has already examined this case on two occasions: first at its March 2002 meeting when it submitted an interim report to the Governing Body (see 327th Report, paras. 645-663), then at its June 2003 meeting when it submitted a report, requesting to be kept informed of developments, to the Governing Body (see 331st Report, paras. 579-592).

99. When it last examined this case, the Committee requested the Government to inform it of the terms of the agreement that would be reached with the trade unions on the composition of the Governing Board of the National Social Security Fund (CNaPS), as well as of the manner in which the Government would preserve the prerogatives, with regard to representation of employers' and workers' interests, of their respective organizations, if it still intended to broaden the composition of certain tripartite bodies. Moreover, the Committee requested that section 1(3) of Decree No. 2000-291 be amended to allow the representativity of trade unions to be determined without any requirement for a list of names. The Committee also requested the Government to ensure that determination of the representativity of workers' and employers' organizations is based on objective and precise legal criteria. Lastly, the Committee requested the Government to keep it informed of allegations relating to acts of interference by the Ministry of the Public Service, Labour and Social Law in the internal affairs of trade unions, and those relating to infringements of the right of collective bargaining resulting from Decree No. 97-1355; if need be, this Decree should be amended to make it compatible with the principle of voluntary collective bargaining.

100. The Government sent its observations by communications dated 24 June and 3 October 2003. The Government highlights that the Ministry of Labour and Social Law has the task of giving priority to social dialogue, hence the establishment, with the consent of the social partners, of the National Employment Council (CNE). With regard to the CNaPS, the Government and the social partners were able to reach an agreement to resolve the problem of the composition of its Governing Board, the members of which were finally able to be appointed. In this respect, the Government attached to its reply a copy of Order No. 5066-2003 of 28 March 2003 appointing members of the CNaPS Board according to the following structure: four government representatives, eight employers' representatives and eight workers' representatives. Furthermore, Decree No. 99-673 of 20 August 1999, renewing the membership of the CNaPS Board, which was promulgated under the previous government and led to disagreement between the Government and the social partners, was abrogated by Decree No. 2002-1575 of 18 December 2002, which was drawn up freely in agreement with the social partners. Generally speaking, as regards the composition of tripartite structures, the Government indicates that the role of the State from now on will consist in endorsing the appointments proposed by the social partners. The Government emphasizes that there has been an effective resumption of social dialogue and, consequently, all activities relating to tripartism.

101. As regards the other issues raised, the Government indicates that Decree No. 2000-291 of 31 May 2000, which would require trade unions to provide a list of their members with a view to determining their representativity, is no longer justified in the light of developments. With regard to the allegations of interference, if such intervention occurred, on the one hand, the Government would not have had the intention of interfering in the internal affairs of a trade union and, on the other hand, such intervention would have been carried out with good intentions, namely to assess the actual representativity of a trade union. Lastly, Decree No. 97-1355 can never supersede the Labour Code. This Decree was promulgated against a backdrop of privatization of state-owned enterprises with a view to reducing the social impact of privatization. More precisely, enterprises experiencing difficulties, and which appeared on the list of enterprises to be privatized, were requested to suspend collective bargaining during this period until their situations were dealt with, so as to prevent the social problems generated by the economic situation from further increasing.

102. The Committee notes with interest the information sent by the Government concerning the effective resumption of social dialogue and the resolution, in agreement with the social partners, of the issue of the composition of the CNaPS Board. The Committee particularly notes the abrogation of Decree No. 99-673 of 20 August 1999 by Decree No. 2002-1575 of 18 December 2002, which was drawn up with the social partners, and that, from now on, the role of the State will consist in endorsing the appointments proposed by the social partners with a view to their participation in tripartite bodies.

103. With regard to Decree No. 2000-291 of 31 May 2000, while taking note of the comments made by the Government, the Committee requests the Government to state whether section 1(3) of the Decree has been effectively abrogated. The Committee also recalls that it requested the Government to ensure that the representativity of trade unions is based on precise and objective legal criteria. The Committee requests the Government to keep it informed in this regard.

104. Lastly, as regards the suspension of collective bargaining for a fixed period within enterprises that were experiencing difficulties and awaiting privatization, the Committee recalls that a distinction should be made between the suspension of collective agreements that have already been concluded, and that of future negotiations. With regard to the first instance, the suspension by decree - without the agreement of the parties - of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If a government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations, without imposing on them the renegotiation of the collective agreements in force (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 876). In the second instance, if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect a worker's living standards (see Digest, op. cit., para. 882). If Decree No. 97-1355 is still in force, the Committee requests the Government to transmit a copy so as to allow it to examine the compatibility of the Decree with the principle of voluntary collective bargaining in full knowledge of the facts.

Case No. 2106 (Mauritius)

105. At its March 2003 meeting, the Committee had noted with interest the resuming of social dialogue and collective bargaining in public service and had requested the Government to keep it informed of developments once the final decision is made concerning the review of the wage determination system conducted by the Pay Research Bureau (PRB) (see 330th Report, paras. 126-128).

106. In a communication dated 28 May 2003, the Government states that: (1) pending the report of the PRB, it approved in December 2002 the payment of a compensation of 5.1 per cent to all workers and approved the payment of full compensation to the low-income groups; and (2) it granted an additional Rs10 on the rate of compensation, enabling the low-income groups to receive compensation higher than the inflation rate.

107. In its communication dated 15 July 2003, the Government states that: (1) on 6 June 2003, it fully approved the Pay Research Bureau Report, 2003, on the Review of Pay and Grading Structures and conditions of service for implementation; (2) all recommendations concerning salaries and conditions of service directly related to salary took effect as from 1 July 2003; and (3) the PRB's report states that all industrial disputes pending before it have been settled.

108. The Committee takes note with interest of this information.

Case No. 2115 (Mexico)

109. The Committee examined at its November 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. On that occasion, the Committee noted that the Government had pointed out that the administrative authorities took note of the by-laws on 14 August 2002 and that the complainant organization raised objections concerning certain aspects of a subsequent 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. The Committee also noted that the Government stated that the trade union in question 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 cases of works undertaken in the federal zone. In this respect, the Committee invited the complainant organization to provide clarifications, if it considered it appropriate, on the aspects of the administrative authority's decision that it contest, in the light of the latest observations made by the Government (see 329th Report, paras. 80-85).

110. In its communication dated 6 January 2003, the complainant organization states that in August 2002 the Under-Secretariat for Labour instructed the Directorate-General for the Registration of Associations to take note of the amendments to the by-laws, and the latter issued a resolution in which it appears to comply with the aforementioned instruction. However, in its resolution the Directorate-General for the Registration of Associations added that:

... in order for this department to be able to initial each and every part of these amended by-laws with the aim of guaranteeing the legal security of the interested parties, a copy of the said by-laws must be presented to this authority, containing written mention in article 8 of the by-laws of the fact that the trade union's objectives shall correspond to industrial construction works or enterprises falling within the competence of the federal authorities, or which are being undertaken or are operating in federal zones, or which operate under federal concession, given that the trade union in question is registered with the federal authority.

The complainant organization alleges that the resolution issued by the Directorate-General for the Registration of Associations has no legal basis, as it imposes conditions that the union cannot possibly meet, because the text of the proposed addition to the amended by-laws has neither been authorized nor agreed on by the union's members, it being unlawful for the authorities to attempt to impose their own criteria on the by-laws of workers' trade union organizations. The resolution which was issued establishes a clause, the sole objective of which is to nullify the amparo decision (enforcement of constitutional rights) that was issued by attempting to impose amendments and objectives which were never agreed on, constituting a violation of the freedom of association of the workers belonging to the trade union and their right to draw up or amend the by-laws of their organizations.

111. In its communication dated 26 May 2003, the Government summarizes its earlier declarations and states that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic interprets national legislation inaccurately and, as a consequence, the requirement by the Directorate-General for the Registration of Associations that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic provide them with a copy of their by-laws stipulating in article 8 that the objectives of the union correspond to construction works undertaken within federal zones, industries or enterprises falling within the competence of the federal authorities, or which operate under a federal concession, is in accordance with the practice in Mexico whereby the application of labour standards is carried out at two levels - the federal and the local - in accordance with the distribution of powers laid out in article 123, section A, Part XXXI of the Political Constitution of the United States of Mexico and section 527 of the Federal Labour Law. The Progressive Trade Union of Workers of the Construction Industry must specify that its objective corresponds to construction works undertaken within federal zones, industries or enterprises falling within the competence of the federal authorities, or which operate under federal concession, in order to prove that it is operating under the jurisdiction of the federal labour authorities, to safeguard the federal agreement enshrined in article 124 of the Political Constitution of the United States of Mexico, which establishes that those powers not expressly conferred on federal officials are understood to be reserved to the States.

112. The Government emphasizes that in its ruling of 6 June 2002, the First Circuit Tenth Collegiate Court for Labour Affairs decided that the administrative resolution being challenged should be vacated, and, in its place, the Under-Secretariat for Labour should issue 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. It is clear from this that the authority which ruled in the amparo proceedings simply decided that the resolution issued by the Directorate-General for the Registration of Associations on 19 October 2002 should be vacated and that another resolution not based on article 360 of the Federal Labour Law should be issued. The Directorate-General for the Registration of Associations fully respected this final judgement, complying with it through the resolution it issued on 14 August 2002.

113. The Government concludes that the labour authorities have complied with the law and have implemented the rulings handed down by the courts. Furthermore, at no time have they contravened the provisions of Articles 1, 2, 3 and 7 of Convention No. 87, given that the right of the aforementioned organization to organize has finally been fully recognized by the labour authorities, as it was established without the prior authorization of any authority, the organization is completely free to run itself as it sees fit and is now a recognized legal entity. Both the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic and the labour authorities also brought the actions and lodged the appeals that they considered appropriate and which are provided for by the legal system itself.

114. The Committee takes note of this information. In this respect, the Committee considers that it is for trade union organizations to decide upon the area in which they wish to carry out their activities, be it at the level of the federal district, one or more States or all of these combined. The Committee recalls yet again that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that 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 (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 275 and 333). The Committee therefore urges the Government to take measures with a view to the formal acknowledgement of the amendments to the by-laws of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic, as decided upon by its members.

Case No. 2136 (Mexico)

115. The Trade Union Association of Airline Pilots of Mexico (ASPA), in a communication dated March 2003, withdrew its complaint as the Federal Council for Conciliation and Arbitration had ordered a survey exclusively of airline pilots in the Consorcio Aviaxsa S.A. de C.V. (AVIACSA) company in order to ascertain the organization with the greater number of members.

116. The Committee takes note of this information and will not pursue its examination of this matter.

Case No. 2207 (Mexico)

117. The Committee last examined this case at its March 2003 meeting. On that occasion, the Committee requested the Government to take steps to register the changes to the constitution requested by the complainant organization (the Progressive Trade Union of Workers in the Metals, Plastics, Glass and Allied Industries), and to keep it informed in that respect.

118. In its communication dated 5 June 2003, the Government indicates that, in the case of the complainant organization, appropriate steps had been taken to comply with the right to set up trade unions and to become affiliated to them as established in Convention No. 87. As regards the registration of the changes to the constitution, it indicates that the First Circuit Second Collegiate Court for Labour Affairs, with impartiality and independence, overturned the amparo decision previously made in favour of the trade union and the protection granted to it under federal law as it considered that the provisions of article 360 of the Federal Labour Law, which establishes that industry trade unions must comprise workers who work in one or more enterprises in the same branch of industry, were not complied with. The Government considers that registering the changes to the constitution would imply a failure to respect the judicial decisions and the system of separation of powers prevailing in the country.

119. The Committee notes the information provided by the Government referring to the judicial decision handed down on the basis of the provisions of article 360 of the Federal Labour Law by the First Circuit Second Collegiate Court for Labour Affairs. The Committee observes that it had already taken that decision into consideration in its previous examination of the case. Consequently, the Committee recalls the principle whereby the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions; 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 (see Digest of decisions and principles of the Freedom of Association Committee, 1996, paras. 275 and 333).

Case No. 2086 (Paraguay)

120. At its November 2002 meeting, the Committee last examined Case No. 2086, concerning: (1) the trial and sentencing in the first instance for "breach of trust" of the three presidents of the trade union confederations CUT, CPT and CESITEP, Alan Flores, Jerónimo López and Reinaldo Barreto Medina; and (2) the dismissal of trade unionist Florinda Insaurralde (see 329th Report, paras. 109-113). On that occasion, the Committee formulated the following recommendations:

The Committee notes 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, Jerónimo López and Alan Flores. In these circumstances, the Committee urges the Government to take measures to this end and hopes that a decision will be handed down in the very near future on the judicial appeals filed and that they will take into account the provisions of Conventions Nos. 87 and 98. The Committee requests the Government to keep it informed in this respect.

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.

121. In the context of the follow-up to these recommendations, in communications dated 8 February, 23 April and 2 June 2003, the complainants requested the International Labour Office to field a mission to note further flaws in the legal proceedings concerning the accused trade union leaders (alleging further delays in handling requests for release, extremely slow progress on the appeal filed against the sentence handed down in the first instance in October 2001, etc.). Moreover, in a communication dated 15 July 2003, the World Confederation of Labour (WCL) joined the complaint, stating that: (a) while a person guilty of committing an offence should be duly punished, the proper functioning of the judicial system is an essential prerequisite; (b) the judicial branch must be wholly independent and adhere to the procedures laid down in the national legislation, in full compliance with Convention No. 87; and (c) due account should be taken of the Committee's recommendations in the judicial proceedings. In a communication dated 23 April 2003, the Government of Paraguay accepted the complainants' proposal for a follow-up mission to visit Paraguay in connection with these allegations.

122. In this respect, the Committee has been informed that: (1) the court of first instance violated the principle of nullum crimen sine lege, which prohibits applying criminal law retroactively, and the sentence was handed down on the basis of a rule of criminal law promulgated after the acts at issue took place; and (2) the accused have served a substantial part of the terms of imprisonment imposed by the court of first instance (in the case of Mr. Barreto Medina, over half his sentence), and there is no firm prospect of any improvement in the state of the proceedings against the trade union leaders in the short or medium term (release requested by the Committee on Freedom of Association and the trade union leaders, a ruling by the Court of Appeal on the appeal filed in October 2001), given that the Court of Appeal has stated that, according to the statutory time limits on the proceedings, a ruling on the appeal filed in October 2001 will not be handed down before December 2003 or the beginning of 2004.

123. The Committee emphasizes that due process of law should include the non-retroactive application of the criminal law, and that the right to a fair and rapid trial is among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 108 and 94). In these circumstances, and in the light of the information received, the Committee deeply regrets the long delay taken by the Court of Appeal to make its ruling and reiterates its previous recommendations. Accordingly, it strongly urges the Government once again to take immediate action to secure the release of trade union leaders Reinaldo Barreto Medina, Jerónimo López and Alan Flores. The Committee requests the Government to keep it informed of any measure taken to that end.

124. Lastly, the Committee regrets that the Government has not sent the observations requested concerning any proceedings filed by Florinda Insaurralde against resolution No. 321/99 and Decree No. 7081/2000, which led to her dismissal, and once again requests the Government to keep it informed in this respect.

Case No. 2098 (Peru)

125. At its June 2003 meeting, the Committee once again requested the Government to take steps to investigate without delay the dismissals of Carlos Alberto Paico and Alfredo Guillermo de la Cruz Barrientos (members of the Board of the Trade Union of Workers of the Industrial Nuevo Mundo Company) and of that union's members and former leaders, Alfonso Terrones Rojas and Zósimo Riveros Villa and, if it were found that they were dismissed because of their trade union activities, to take measures to ensure their reinstatement in their posts. The Committee requested the Government to keep it informed in that respect (see 331st Report, para. 66).

126. In its communication of 19 March 2003, the Government states that the judicial authority has reported that there are no proceedings under way for the persons mentioned.

127. Given that in Peruvian legislation the authority responsible for examining claims of anti-union persecution is the judicial authority, the Committee invites the complainant organizations to take steps to ensure that the trade unions officials in question take the appropriate legal actions.

Case No. 1826 (Philippines)

128. When it last examined this case in March 2003, which concerns lengthy delays and several postponements of a trade union certification election (first requested in February 1994) at Cebu Mitsumi Inc., in the Danao export processing zone, the Committee once again expressed its deep concern at the inordinate delays, intervened in the case and urged the Government to speed up, as a matter of urgency, the process of certification at Cebu Mitsumi Inc. In addition, the Committee deeply regretted that the Government did not provide any other information on the other issues (the suspension of Mr. Ulalan, and the steps taken to establish a fair and speedy certification process providing adequate protection against acts of interference by employers in such matters) (see 330th Report, paras. 138-140).

129. In a communication of 13 August 2003, the Government provided the following information. The pre-election conference on the certification elections at Cebu Mitsumi Inc., conducted by the Department of Labor and Employment, to which earlier communications of the Government referred, continued and resulted in agreements between both parties on the following points: (a) the certification election will be held on 5 December 2003 from 8 a.m. until 10 p.m.; (b) Cebu Mitsumi Inc. will submit the list of voters before 20 August 2003, the date agreed by the parties for inclusion-exclusion proceedings; (c) Cebu Mitsumi Inc. will provide the petitioner (Cebu Mitsumi Employees' Union (CMEU)) with the said list before 18 August 2003; and (d) other aspects of the certification election will be discussed at the next meeting scheduled on 20 August 2003. The communication does not contain any other information.

130. The Committee takes note that both parties have agreed to hold the certification election on 5 December 2003. The Committee notes on the other hand that, at the time of the submission of the Government's reply, the list of voters had not been established and other aspects of the election remained to be agreed upon. Bearing in mind that the last two elections had been marred by a number of irregularities, in particular because the majority of eligible voters had not cast their votes, thus resulting in further delays, the Committee trusts that every effort will be made to ensure that the certification election will actually take place on the agreed date, with all the assurances of impartiality and non-interference. The Committee requests the Government to keep it informed in this regard. Further, the Committee deplores that for the sixth time it must reiterate its request to the Government to provide information on the indefinite suspension of the president of the CMEU, Mr. Ulalan, as well as on the 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. The Committee expects that the Government will now provide this information without any further delay.

Case No. 2195 (Philippines)

131. The Committee last examined this case at its meeting in November 2002. Recalling that the responsibility for declaring a strike illegal should not lie with the Government but with an independent body which has the confidence of the parties involved, the Committee urged the Government to amend section 263(g) of the Labor Code in order to put it into full conformity with the principles of freedom of association. In addition, considering that sanctions, such as mass dismissals, in respect of strike action, should remain proportionate to the offence or fault committed, the Committee requested the Government to initiate discussions in order to consider the possible reinstatement in their previous employment of all the members of the Association of Airline Pilots of the Philippines (ALPAP) who had been dismissed following the strike staged in June 1998. In this respect, while acknowledging the fact that ALPAP could be required to hold a strike vote before staging a strike, the Committee considered that the Secretary of Labor and Employment should not have assumed jurisdiction over the conflict and put an immediate end to the strike (see 329th Report, paras. 722-739).

132. Since the communication of the conclusions and recommendations of the Committee, approved by the Governing Body at its 285th Session (November 2002), to the Government and the complainant, both parties have sent a number of communications. The last communication received from the complainant, dated 31 July 2003, has been transmitted on 19 August 2003 to the Government for its observations. The communications that are now before the Committee for its examination of the effect given to its recommendations can be summarized as follows.

133. In a communication dated 6 January 2003, the Government indicates that it takes exception to the conclusions of the Committee. The Government reiterates and emphasizes that the strike declared by ALPAP did not meet the procedural requirements set forth in the Labor Code and was in defiance of the return-to-work order issued in accordance with article 263(g). The Government adds that the air transport plays an important role in the day-to-day economic activities of the Philippines and that the economic performance was plummeting when ALPAP went on strike. With respect to the amendment of article 263(g), the Government informs the Committee that steps towards the amendment of the law are being taken, in light of the national conditions of the Philippines. As for the recommendation of the Committee concerning the dismissed workers, the Government has duly noted it.

134. In a communication dated 7 January 2003, the complainant alleges that the Department of Labor and Employment (DOLE) has decided to adopt a cavalier approach to the matter. Further, the complainant attaches to its communication a motion that it has filed with DOLE. In this document, ALPAP alleges that Philippine Airlines Inc. (PAL) has dismissed not only the workers who participated in the strike but also all the officers and members of ALPAP, including those who were on official leave or abroad at the time of the strike. Therefore, ALPAP requests DOLE to conduct "the requisite legal proceedings to determine with finality who among the officers and members of ALPAP should be reinstated or deemed to have lost their employment status for their actual participation in the strike conducted by ALPAP in June 1998".

135. In a letter of 7 August 2003, the Government provides its observations on ALPAP's communication. The Government states at the outset that a distinction must be made between the recommendation of the Committee on the need to amend article 263(g) and the recommendation concerning the re-examination of the dismissals of ALPAP members. On the first issue, the Government indicated that DOLE has already submitted a proposal of amendment to the labour committees of the Senate and of the House of Representatives; the proposal would include the exercise of assumption of jurisdiction powers only in disputes involving "essential services". On the other hand, the position of the Government must be replaced in the context of a dispute involving ALPAP that has been resolved with finality by the Supreme Court on 10 April 2002 (the decision of the Court was attached to the Government's reply to the complaint).

136. The Government emphasizes once more that the strike staged by ALPAP was tainted with procedural flaws and it underlines that both the Committee of Experts on the Application of Conventions and Recommendation and this Committee have admitted that the right to strike is not an absolute right and that certain prerequisites to its exercise are acceptable. In this respect, the Government underlines that requirements set out in article 263 are no different from the measures accepted by this Committee.

137. As for article 263(g), the Government underlines that the Committee accepts compulsory arbitration in cases of strike, in particular, in relation to essential services. Referring to paragraph 541 of the Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, the Government emphasizes that the Committee admits that what is meant by essential services in the strict sense of the term "depends to a large extent on the particular circumstances prevailing in a country". The Government notes that the Committee excludes the transport sector only in "general terms". The Government therefore considers that, under reasonable circumstances, particular services in this sector may be considered as essential. In this connection, the Government states that the Philippines socio-economic lifeblood runs through an archipelago connected by travel and communications facilities and services; thus PAL provides a crucial lifeline accessed by thousands of travellers and merchants on a daily basis. Suspension of PAL flights therefore would have tremendous economic implications for the country.

138. Concerning the Committee's statement that the strike should be declared illegal by an independent body, the Government underlines that it already complies with this principle and that, in particular, the actions of the Secretary of Labor and Employment are subject to the review of the Courts. Both the Court of Appeals and the Supreme Court have confirmed the Secretary's rulings in the present case.

139. On the motion filed by ALPAP, the Government provides the following information. In a letter of 30 July 2003, the Secretary of DOLE informed ALPAP that the issue raised in the motion has been resolved with finality by the Supreme Court. Thus DOLE could not hold proceedings to determine: (1) the officers and members of ALPAP who should be reinstated or deemed to have lost their employment status with PAL, because of their actual participation in the strike conducted in June 1998; (2) issues relating to the entitlement to and the enjoyment of accrued employment benefits by the officers and members of ALPAP whether they had been terminated or not.

140. The Committee notes that the Government develops mainly its views on the substance of the case in particular by elaborating on those which it already presented in its reply to the complaint. Bearing in mind that its examination of the case has reached the stage where the Committee has to consider the effect given by the Government to its recommendations, as they have been approved by the Governing Body, the Committee will simply take due note of these views and that they differ from the conclusions reached by the Committee.

141. With respect to its particular recommendations, the Committee notes with interest that the Department of Labor and Employment (DOLE) has submitted to both the House of Representatives and the Senate a proposal to amend article 263(g) so as to limit the jurisdiction of the Secretary of Labor to dispute involving essential services. The Committee requests the Government to keep it informed in this regard and to provide a copy of the proposed amendment as soon as it has been adopted.

142. Concerning the possible reinstatement of ALPAP's workers who had been dismissed following the strike staged in June 1998, the Committee notes that there is no indication, from the communications at its disposal, that discussions have been initiated. Moreover, the Committee notes with concern that, on the one hand, the motion filed by ALPAP contains allegations that all its members and officers have been dismissed whether they had participated in the strike or not, and that, on the other hand, the Secretary of Labor and Employment has decided not to intervene in the matter as it considered that the Supreme Court has handed down a final ruling thereon. In these circumstances, the Committee expresses the firm hope that the Government will take concrete steps to initiate discussions in order to consider the possible reinstatement in their previous employment of all ALPAP's workers who have been dismissed following the strike staged in June 1998, and to keep it informed in this regard. Further, the Committee requests the Government to provide specifically, and as a matter of urgency, its observations on the allegation of ALPAP in relation to the dismissals of all the union's members and officers regardless of their participation in the strike or not. Finally, the Committee awaits the Government's observations on ALPAP's communication dated 31 July 2003.

Case No. 1785 (Poland)

143. The Committee last examined this case at its March 2003 session, where it requested the Government to continue to keep it informed in respect of remaining claims pending before the Social Revindication Commission, and of any further developments in respect of the Employees' Recreation Fund (see 330th Report, para. 143).

144. In a communication of 28 August 2003, the Government indicates that three cases are currently examined by the Social Revindication Commission; another decision was issued in July 2003 but is still subject to appeal. The Public General Prosecutor has appealed (to the Supreme Court) a decision of the Supreme Administrative Court upholding a decision of the Commission. Three other cases are pending before the Supreme Administrative Court. All these decisions may lead to further proceedings before the Commission. The Government also informs that the legislative work on the status of the assets of the Employees' Recreation Fund has not started yet.

145. The Committee takes note of this information and requests the Government to continue to keep it informed in respect of remaining claims pending before the Social Revindication Commission, and of any further developments in respect of the Employees' Recreation Fund.

Case No. 2185 (Russian Federation)

146. The Committee examined this case at its June 2003 meeting (see 331st Report, paras. 660-677) and on that occasion it requested the Government to initiate an independent inquiry into the allegations concerning the creation of a "yellow" trade union at the OAO Novorossiisk Commercial Sea Port (OAO NMTP). It further requested the Government and the complainant to keep it informed of any developments concerning the establishment of a unified representative body on the basis of proportional representation for the conclusion of a new collective agreement.

147. In their communication of 20 August 2003, the Trade Union of Water Transport Workers (PRVT) and the FNPR indicated that the collective agreement between workers and the OAO NMTP was concluded in violation of the Russian legislation since no conference at the workplace was held and the collective agreement was signed on the basis of a decision of the drafting committee. Although the committee included representatives of the complainant organization, the PRVT states that it was impossible to put forward any serious proposals, since the management's representatives put them to a vote and they were withdrawn from discussion by the votes of the representatives of the "yellow" trade union. The complainants provide further information on the continuing discriminatory policy of the OAO NMTP management towards the PRVT primary trade union and on the pressure exercised on individual members of the trade union to leave the PRVT.

148. In its communication of 5 September 2003, the Government states that the Russian legislation provides for adequate protection against acts of interference in trade union affairs and trade union rights in general. The Government states that the General Office of Prosecutor conducted an inquiry into allegations of the primary trade union organization of the Azov-Black Sea Interregional Organization of the PRVT addressed to the Office of Prosecutor of the Krasnodar territory concerning the actions of the administration of the OAO NMTP aimed at withdrawal of the port workers from the PRVT and their subsequent entry into the new trade union. The Government states that those allegations were not confirmed.

149. The Government indicates that the process of withdrawal from the PRVT began over ten years ago and not in 2000, as the complainant in this case indicates. The new trade union of seaport workers was set up in early 2001 and registered in April 2001 in accordance with the legislation. The trade union was founded on the initiative of a group composed of 11 persons. According to minute No. 1 of the meeting of 17 January 2001, the founders of the trade union elected a committee of three people to deal with the questions of establishment of the trade union. Following the general conference where all the port workshops could delegate their representatives, the trade union was established. No evidence confirming the participation of the port management in the creation of the trade union was found. The alleged facts of appointment of workers to the conference by the port management were not confirmed.

150. According to the findings of the inquiry conducted by the Office of Transport Prosecutor in June-July 2001 many members of the PRVT did not request in writing the transfer of the trade union dues to the new trade union of the seaport workers. On the order of the Office of Prosecutor this violation was obviated.

151. The Government further states that this case raises the issue of collective labour disputes. In this respect, it states that the Russian legislation provides for the procedure of settlement of collective labour disputes. In particular, according to section 29 of Federal Act (No. 10-FZ) on trade unions, their rights and guarantees of their activities, "the judicial protection of the rights of trade unions shall be guaranteed. Cases of breach of trade union rights shall be heard by a court of law on the petition of a prosecutor or on a statement of claim or bill of complaint filed by the respective body of the trade union or primary trade union organization". The complainant did not lodge any complaint with the National Labour Inspectorate of the Krasnodar territory; neither did the trade union submit any complaint to the relevant judicial bodies. Therefore, all national remedies were not exhausted.

152. The Committee notes the information provided by the complainant and by the Government. The Committee notes from the Government's statement that the allegations of creation of a "yellow" trade union by the port management and the campaign launched by the enterprise aimed at the withdrawal of the port workers from PRVT and their subsequent entry into the "yellow" union were not confirmed by the inquiry conducted by the General Office of Prosecutor and that the new trade union of seaport workers was legally created. The Committee recalls from the previous examination of this case that the complainants had submitted a copy of minute No. 1, referred to by the Government and which provides for the names and the post of the three members of the committee responsible for establishing the trade union. Among them are the director of the Human Resources Department and the head of the Department of the State Property. The Committee also recalls that the commission of inquiry established by order of the Transport Prosecutor in May 2001, the report of which was also submitted by the complainant, confirmed the abovementioned allegations. It further notes that in this connection, the Transport Prosecutor has requested the Director of the OAO to obviate all the violations of the Law on Trade Unions. In the light of these circumstances as well as of the recent communication of the complainants to the effect that the port administration continues to put pressure on the members of the primary trade union of the complainant organization, the Committee once again requests the Government to initiate an independent inquiry into these allegations and to keep it informed of the outcome.

153. The Committee further notes the information provided by the PRVT concerning the negotiation of a collective agreement. The Committee notes that the representative of the complainant organization has participated in the drafting of the collective agreement, but that according to the complainant, it could not successfully put forward any serious proposals as they were vetoed by the representatives of the alleged "yellow" trade union. The Committee notes that the complainant organization does not indicate whether the drafting committee was established on the basis of proportional representation, as provided for in section 37 of the Labour Code. The Committee notes the Government's statement according to which the complainant did not lodge any complaint with the National Labour Inspectorate of the Krasnodar territory nor with the relevant judicial bodies. The Committee recalls from the previous examination of this question, that the complainant addressed the Office of Public Prosecutor with a request to issue a legal opinion on the procedure of conducting collective bargaining and on the consequences of non-respect of the legislative procedure. According to the opinion of the prosecutor, attached to the complaint, the procedure of conducting collective bargaining was not respected at the OAO NMTP; the complainant was therefore advised to appeal the actions of the port administration according to the legislation in force. The Committee request the complainant to indicate whether it considers appealing to the relevant judicial body with a view to annul the collective agreement in question. The Committee regrets that no actual information was provided by the Government to its request to keep it informed of any developments concerning the establishment of a unified representative body on the basis of proportional representation for the conclusion of a new collective agreement at the OAO MNTP.

154. The Committee further requests the Government to reply to the observations of the complainants contained in the communication of 20 August 2003.

Case No. 2199 (Russian Federation)

155. The Committee examined this case at its June 2003 meeting (see 331st Report, paras. 678-706) and on that occasion it formulated the following recommendations:

- The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant's allegations. The Committee urgently requests the Government to be more cooperative in the future and in particular, it would request the Government to solicit information from the employer's organization concerned with the view to having at its disposal its view as well as those of the enterprise concerned on the questions at issue.

- The Committee requests the Government to establish an independent investigation into the allegations of acts of anti-union discrimination and if it is proven that acts of anti-union discrimination were taken against RPD members, to take all necessary steps to remedy this situation, to ensure reinstatement at the TPK, as requested by the courts, as well as payment of lost wages.

- The Committee requests the Government to keep it informed of the outcome of the new case filed by the docker trade union members against new dismissals.

- The Committee requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that the complaints of anti-union discrimination are examined in the framework of national procedures which are clear and prompt. The Committee requests the Government to keep it informed in this respect.

- As regards the complainant's allegation of violation of trade union premises and property, the Committee considers that before being undertaken, the occupation or sealing of trade union premises should be subject to independent judicial review. Drawing the Government's attention to the importance of the principle that the property of trade unions should enjoy adequate protection, the Committee requests the Government to take the necessary measures so as to ensure that this principle is respected.

156. In its communication of 5 September 2003 the Government states that anti-union discrimination is prohibited under the Russian legislation, which also provides for legal remedies in case of violation of workers' rights. The National Labour Inspectorate of Kaliningrad district has examined the allegation concerning the violation of labour legislation by the administration of the Commercial Seaport of Kaliningrad (TPK). The allegations of violation of labour rights of workers - members of the Russian Trade Union of Dockers (RPD) as concerns decrease of dockers' wages following their transfer to different brigades, which took place after the termination of the strike on 28 October 1997, were not confirmed. All dockers, members and non-members of the RPD received the same wages. The investigation further found that from 1 April to 31 December 1998, 279 workers, including 55 dockers, were fired from the TPK due to the staff reduction. Twenty-six fired dockers were members of the RPD, all of them were dismissed with the approval of the trade union committee.

157. The trade union organization addressed the Baltic District Court of Kaliningrad a complaint against the TPK on behalf of 24 dockers, members of the RPD. Following the court decision of 24 May 2002, the dockers were reinstated in their job on 27 May 2002. Since the court decision ordering compensation to the dockers was considered unlawful according to section 323 of the Code of Civil Procedure, the Kaliningrad Provincial Prosecutor suspended its execution of the decision. Prosecutor's objection to the execution of court decision of 24 May 2002 was confirmed by the Presidium of Kaliningrad Provincial Court. Since the TPK administration did not offer to the dockers the job provided by the labour contract, the dockers did not come to work and were fired for absenteeism. The trade union once again addressed the Baltic District Court of Kaliningrad. Following the court decision of 7 October 2002, the dockers were once again reinstated in their jobs on 23 October 2002. However, the dockers did not come to work. The bailiff of the Baltic District Court had ordered the termination of the enforcement procedure of the court decision of 24 May 2002. The bailiff's decision was contested by the dockers and revoked by the court. On 30 December 2002, the court issued a second decision containing clarifications of the previous decision and providing for the posts to be occupied by the dockers. The Kaliningrad port appealed the court decision of 30 December 2002. The civil board of the Kaliningrad Provincial Court rejected the appeals. The court decision on reinstatement of the dockers was submitted to the bailiff's office on 31 March 2003. On 2 April 2003, the bailiff issued an order to reinstate the dockers in their posts. However, the indicated date of reinstatement was 31 March 2003 and not 30 October 2002 (the date indicated in the court decision). Due to this discrepancy, the dockers did not come to work. The port director appealed the bailiff's actions. The court considered those actions to be legal. Due to the non-respect of the court decisions, administrative sanctions were imposed on the port director on two occasions. Presently, the port administration does not oppose to the reinstatement of dockers.

158. As concerns the allegations of anti-union discrimination, the Government states that following relevant investigations, those allegations were not confirmed. The Kaliningrad Provincial Court had rejected those allegations on 14 August 2000 and the dockers did not appeal this decision.

159. As concerns the allegations of violation of trade union premises by the port management, the Government states that the relevant inspections did not confirm these allegations. The union's request to begin criminal procedure against the port was therefore rejected by the Office of the Prosecutor on 16 August 2002.

160. Finally, the Government states that the dockers used all means of procedure provided for the effective protection of their rights by the former Code of Civil Procedure: they addressed the Labour Inspectorate of Kaliningrad, the Office of the Prosecutor and the courts. The Government points out that according to the newly adopted Code of Civil Procedure, judicial decisions are binding on everyone, including authorities, organizations and citizens. Moreover, on the alleged facts of discrimination, the Government indicates that complaint No. 67336/01 "Danilenkov and others v. Russia" will be examined by the European Court of Human Rights.

161. The Committee notes the information provided by the Government. The Committee notes that although the Government denies the alleged facts of anti-union discrimination and states that the Russian legislation provides for the effective means of protection of trade union rights, it indicates that on numerous occasions, the complainants addressed the relevant judicial authorities seeking the implementation of court decisions to reinstate the dockers in their posts which the port administration had persistently refused to fully implement. The Government further indicates that the complainants have exhausted all possible remedies provided for protection of their rights. Noting with concern that numerous court decisions providing for the reinstatement of dockers, members of the RPD, cannot be enforced, the Committee continue to query the motivation behind the employer's refusal, as well as the effectiveness of the procedures on protection of labour rights provided by the legislation. The Committee notes the Government's statement to the effect that the port administration does not oppose to the reinstatement of dockers. However, no information on whether the dockers were reinstated was provided. The Committee requests the Government to provide information in this respect.

162. As regards the allegation of violation of trade union premises and property, the Committee notes the Government's statement to the effect that the relevant inspections did not confirm this allegation and therefore, the union's request to begin criminal procedure against the port was rejected by the Office of Prosecutor on 16 August 2002. The Committee recalls from the previous examination of this case that on 8 August 2002, the port administration notified the RPD that it was to vacate the union office (the relevant documentation was attached to the complaint) and that five days later, the trade union premises were sealed without previous judicial review. The Committee therefore once again recalls that before being undertaken, the occupation or sealing of trade union premises should be subject to independent judicial review in view of the significant risk that such measures may paralyse trade union activities. The Committee draws the Government's attention to the importance of the principle that the property of trade unions should enjoy adequate protection (see Digest of decisions and principles of the Freedom of Association Committee, paras. 183 and 184). The Committee therefore once again requests the Government to take the necessary measures so as to ensure that this principle is respected.

Case No. 2171 (Sweden)

163. At its March 2003 session, the Committee examined this case, which concerns a statutory amendment enabling workers to remain employed until the age of 67 and prohibiting negotiated clauses on compulsory early retirement. The Committee requested the Government to take appropriate remedial measures so that agreements already negotiated on compulsory retirement age would continue to produce all their effects until their expiry date, invited the Government to resume thorough consultations on pension issues with all parties concerned with a view to finding a solution that would not impede the right to bargain collectively, and requested to be kept informed of developments (see 330th Report, para. 1053).

164. In a communication of 26 May 2003, the Government indicated that it held a meeting on 14 May 2003 with the implementation group, which includes representatives from the five parliamentary political parties that endorse the agreement on a new pensions system. The Government had also invited the bargaining partners to a meeting on 12 June 2003.

165. The Committee notes this information and once again requests the Government to take remedial action so that collective agreements already negotiated on pension matters continue to produce all their effects until their expiry dates. It requests the Government to keep it informed of the results of the thorough consultations with the bargaining partners on pension issues held with a view to finding a solution that will be in conformity with the Conventions on freedom of association ratified by Sweden.

Case No. 2148 (Togo)

166. The Committee last examined this case at its March 2003 meeting (see 330th Report, paras. 144-147). On that occasion, the Committee once again requested the Government to rescind the decrees declaring the teachers absent without leave and to restore the rights of all teachers still affected by these decrees, and to keep it informed in this regard.

167. In its communication of 2 September 2003, the Government stated that the trade union in question, the National Union of Independent Trade Unions (UNSIT), had sent it a list of assistant teachers that claimed not to have been reinstated in their jobs following the strike, which was the object of the complaint. As this list did not conform to that of the Directorate of Human Resources of the Ministry of National Education, it was decided to establish a committee to carry out the necessary verification. The Government will only decide whether there are cases where rights have not been restored after this committee makes its report.

168. The Committee notes this information. Recalling that the events giving rise to this complaint took place in June 1999, in the context of a legal strike to demand the payment of salary arrears and unpaid salaries, the Committee notes that the Government has still not followed up to its recommendation to revoke the decrees, and once again urges it to revoke the decrees in question. The Committee hopes that the verification committee will carry out its investigations very rapidly, and requests the Government to keep it informed of the outcome of these deliberations and the decisions taken as a result regarding the teachers still affected by the application of the decrees.

Case No. 2018 (Ukraine)

169. The Committee last examined this case at its November 2002 meeting when it requested the Government to continue to keep it informed of any development relating to this case (see 329th Report, paras. 142-144).

170. In its communication dated 4 September 2003, the Government indicates that the administration of the Ilyichevsk Maritime Commercial Port and the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (the NPRP) have concluded a new collective agreement on transfer of trade union dues. The Government further states that 1,197 are currently members of the NPRP.

171. The Committee notes this information with interest.

Case No. 2038 (Ukraine)

172. The Committee last examined this case at its March 2003 meeting when it requested the Government to keep it informed of any developments in the preparation, in full consultation with the social partners, of amendments to section 16 of the Trade Unions Act, which had created certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers (see 330th Report, paras. 153-156).

173. In its communication dated 4 September 2003, the Government indicates that the Trade Unions Act was amended on 5 June 2003 and that newly amended section 16 simplifies the legalization process. Whereas previously the legalizing body could refuse to register a trade union if the documents presented by the trade union did not correspond to its status, according to the new version of section 16, the legalizing body can no longer refuse to register a trade union but only to request it to provide the necessary additional information. The Government further states that the Cabinet of Ministers of Ukraine submitted a proposal on amendment of the legislation on trade unions and that on 10 July 2003, the Supreme Rada of Ukraine adopted the Law of Ukraine on Amendment of Certain Legislative Acts of Ukraine concerning Trade Union Activities.

174. The Committee takes note of this information. It notes with interest the amendment of section 16 of the Trade Unions Act and requests the Government to provide the copy thereof. The Committee trusts that any future legislative amendments affecting trade union rights will be preceded by full and detailed consultation with social partners. The Committee requests the Government to keep it informed in this respect and supply the copy of the relevant legislation as soon as it is adopted.

Case No. 2079 (Ukraine)

175. The Committee last examined this case at its March 2003 meeting when it requested the Government to clarify the situation of the Volynskaya Province division of the All-Ukraine Trade Union "Capital/Region" as far as its registration with local authorities is concerned. The Committee further requested the Government to set up an independent inquiry into dismissal of Mr. Linik and if there was evidence that he had been dismissed for reasons linked to his legitimate trade union activities, to take all necessary measures to reinstate him in an appropriate position without loss of wages or benefits (see 330th Report, paras. 157-161).

176. In its communications dated 2 January and 5 May 2003, the complainant alleges violations of trade union rights of the divisions of the All-Ukraine Trade Union "Capital/Region" at the following enterprises: "Volynoblenergo", Lutsk Bearing Plant and "AY-I EC Rovnoenergo". More particularly, the complainant states that delegates to the labour conference, at the "Volynoblenergo" enterprise, are chosen by the employer. Such situation facilitates the adoption of collective agreements suitable to the employer and their unilateral amendment by the employer. The complainant further states that the Government has not undertaken an independent investigation of Mr. Linik's dismissal from the Lutsk Bearing Plant. As regards "AY-I EC Rovnoenergo", the complainant states that employer ignores the complainant's organization, publicly calls it semi-legal and prefers to deal and conduct collective bargaining with a "more suitable" trade union. None of the facilities, which should be provided to the trade union under the legislation, are afforded to the complainant's organization. Moreover, the employer puts various forms of psychological pressure on trade union members and its leaders. In its communication of 12 May 2003, the complainant further alleges anti-union discrimination at the "AY-I EC Rovnoenergo" enterprise, where certain trade union members were threatened with dismissal or dismissed without approval by the trade union organization.

177. In its communications of 14 April, the Government states that in April 1999, the Territorial State Labour Inspectorate examined the representation of Mr. Linik concerning his dismissal on grounds of staff reduction and established that the dismissal procedure was carried out in accordance with the labour legislation. As concerns the allegations of anti-union discrimination at the "AY-I EC Rovnoenergo" enterprise, in its communications of 11 July and 8 August 2003, the Government states that the Rovenskaia regional administration examined the complaint and concluded that the existence of trade union rights' violations were not confirmed. The Government states that only Mr. Slipenko was dismissed from the "AY-I EC Rovnoenergo" enterprise, on the grounds of drunkenness at the workplace. On 5 May 2003, the management of the "AY-I EC Rovnoenergo" enterprise addressed the trade union with the request to approve the dismissal of Mr. Slipenko. However, the management had never received a response from the workers' organization, which, according to the legislation in force, has ten days to respond. Finally, the Government indicates that on 30 May 2003, Mr. Slipenko withdrew his membership from the complainant's organization and joined the Energy and Electrotechnical Industry of Ukraine Worker's Union.

178. The Committee notes the statements of the complainant and the Government. The Committee regrets that no information has been provided by the Government in respect of its previous request to clarify the situation of the Volynskaya Province division of the All-Ukraine Trade Union "Capital/Region" as far as its registration with local authorities is concerned. It once again requests the Government to provide information in this respect. The Committee further observes that, since February 2000, it has been asking the Government to set up an independent inquiry into the dismissal of Mr. Linik. The Committee therefore reiterates this request and, if there is evidence that Mr. Linik had been dismissed for reasons linked to his legitimate trade union activities, once again request the Government to take all the necessary measures to reinstate him in an appropriate position without loss of wage and benefits. As concerns the allegations of violation of trade union rights at the "AY-I EC Rovnoenergo" enterprise, the Committee notes the Government's statement concerning the allegations of anti-union discrimination. The Committee notes, however, that the statements of the Government and the complainant on this matter are contradictory. Moreover, no information was provided by the Government as concerns other allegations of violation of trade union rights. The Committee requests the Government to set up an independent inquiry into all the alleged violations of trade union rights at the "AY-I EC Rovnoenergo" enterprise and keep it informed in this respect. The Committee further requests the Government to provide information on the alleged violations of trade union rights at the "Volynoblenergo" enterprise.

Case No. 2058 (Venezuela)

179. At its March 2003 meeting, the Committee requested the Government to inform it of any court rulings from the appellate court on the suspension, by the judicial authorities, of the administrative ruling legalizing the registration of the Trade Union of Congressional Employees and Workers - New Trade Union Structures (SINTRANES) (see 330th Report, paras. 162 and 164).

180. In its communication of 15 May 2003, the Government states that the legal appeal by a rival trade union to annul the registration of SINTRANES expired on 8 January 2001, as the rival trade union did not present any legal document to support its claim; this was established and concluded by the legal authority. SINTRANES has at no time ceased to defend its interests and to enjoy freedom of association and the problems arising in this case reflect inter-union conflicts.

181. The Committee notes this information.

Case No. 2161 (Venezuela)

182. At its June 2003 meeting, the Committee noted the measures adopted by the Government with a view to implementing its recommendations regarding the reinstatement of dismissed SUTRAMACCSI officials, and requested the Government to continue to take steps to ensure that the "Sofia Imbert" Museum of Contemporary Art in Caracas reinstated them in their posts. The Committee also noted in this connection that the authorities had proposed amendments to legislation relating to anti-union discrimination, and would be requesting the ILO's technical assistance. The Committee requested the Government to keep it informed of developments with regard to the dismissed individuals and to legislation, and hoped that these matters would soon be satisfactorily resolved (see 331st Report, para. 101). The dismissed officials referred to are Jorge Moreno (Secretary-General), José Gregorio González (Secretary), Delvis Beomont (Treasurer), Alfonso Perdomo (Public Relations Officer) and Omar Burgos (Secretary for Labour and Complaints) and Teresa Zottola and Sonia Chacón.

183. In its communications of 9 and 13 June 2003, the Government states that Teresa Zottola, Jorge Moreno, Omar Burgos and Alfonso Perdomo have been reinstated in accordance with administrative rulings that also regulate back payment of wages.

184. The Committee notes this information with satisfaction. The Committee requests the Government to inform it of all measures adopted to reinstate trade union officials José Gregorio González and Delvis Beomont and Sonia Chacón. The Committee has also been informed that a draft law to amend the labour legislation, in particular with regard to protection against anti-union discrimination, has been submitted to the Congress of the Republic. The Committee requests the Government to keep it informed in this respect.

Case No. 2191 (Venezuela)

185. At its meeting in March 2003, the Committee made the following recommendations (see 330th Report, para. 1163):

The Committee trusts that the deduction of trade union dues of the workers belonging to trade unions that make up the Venezuelan Federation of Teachers (FVM) will be re-established without delay. The Committee requests the Government to keep it informed of developments in the situation in this regard.

186. In its communication dated 20 September 2003, the Government states that, applying the agreement of 12 August 2002 (signed as a result of collective bargaining by the Ministry of Education, Culture and Sport and the teachers' trade unions, including the FVM), trade union dues are being deducted from teachers and paid to the trade unions that make up the FVM.

187. The Committee takes note of this information with interest.

Cases Nos. 1937 and 2027 (Zimbabwe)

Industrial action in respect of questions of economic and social policy

188. At its June 2003 meeting, the Committee had noted the amendments made to the Labour Relations Amendment Act, and had noted that the various definitions given to the term "unlawful collective job action" may raise difficulty in respect of the right to strike. It requested the Government to indicate the manner in which, under current law, it is ensured that industrial action may be taken in respect of questions of economic and social policy without sanctions (see 331st Report, para. 104).

189. In a communication dated 28 July 2003, the Government states that the Labour Relations Amendment Act, which was passed by Parliament on 18 December 2002, was promulgated into law on 7 March 2003 as the Labour Relations Amendment Act No. 17/2002. With regard to the possibility to take industrial action in respect of questions of economic and social policy, the Government states that "the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers", to the extent that they are disputes of interests, can appropriately be addressed by collective job action. It further states that the definition of "collective job action" does not seek to broaden the grounds of collective job action by extending the right to question economic and social policy per se (such questions according to the Government are in the realm of political issues as opposed to labour issues), but confines it to the economic and social questions related to the undertaking.

190. The Committee concludes that the legislation does not allow workers and their organizations to take industrial action in respect of questions of economic and social policy. The Committee therefore reiterates it previous principles and requests the Government to amend the Labour Relations Amendment Act No. 17/2002 to ensure that industrial action may be taken in respect of questions of economic and social policy, without sanctions.

Sanctions in case of unlawful collective job action of the Labour Relations Amendment Act (sections 109 and 112)

191. The Committee noted that, in the case of unlawful collective job action being organized as strictly defined in the legislation, excessive sanctions are provided. Sections 109 and 112 establish possible imprisonment of the individual engaged in an unlawful collective job action, while section 107 gives the power to the Labour Court to dismiss the individual engaged in such action and to suspend or rescind the registration of the trade union involved in such action. The Committee requested the Government to amend the legislation so as to bring it into conformity with freedom of association principles on this point (see 331st Report, para. 105).

192. The Government states that sections 109 and 112 provide in case of illegal strikes for maximum penalties, which are not mandatory; moreover, the levels of fines are proportionate to the prison terms.

193. The Committee reiterates its previous principles and requests once again the Government to amend the Labour Relations Amendment Act No. 17/2002 so as to bring it into conformity with the freedom of association principles so as to guarantee that no imprisonment sanctions are taken in case of peaceful strikes and that the sanctions are proportionate to the seriousness of the infringements.

Assault on the trade union leader, Mr. Morgan Tsavangirai

194. With regard to the assault on Mr. Tsavangirai, the Committee urged the Government to ensure that an independent investigation is fully carried to its term with the aim of identifying and punishing the guilty parties (see 331st Report, para. 106).

195. The Government maintains its position that instituting a judicial inquiry over the assault of the former secretary of the ZCTU would create a wrong precedent.

196. The Committee is deeply concerned about the fact that more than three years after the first examination of the case and repeated demands to that effect, the Government maintains the same position and does not intend to conduct an investigation. The Committee reiterates its previous conclusion and urges the Government to ensure that an independent investigation is fully carried to its term with the aim of identifying and punishing the guilty parties.

Investigation into the arson of the ZCTU offices

197. The Committee had requested the Government to keep it informed of developments concerning the investigation into the arson of the ZCTU offices (see 331st Report, para. 106).

198. The Government states that the matter is still pending since nobody has so far been identified as the perpetrator.

199. The Committee recalls that the legal proceedings have been pending since December 1998. The Committee emphasizes that justice delayed is justice denied (see Digest of decisions and principles of the Freedom of Association Committee, op. cit., para. 105). The Committee urges the Government to take the necessary measures to conduct an inquiry in order to identify the perpetrators and to keep it informed of the measures taken in this regard, as well as the results of the investigation.

Temporary ban on industrial action in November 1998

200. The Committee had asked the Government to keep it informed of the judgement of the High Court concerning the temporary ban on industrial action issued in November 1998.

201. The Government states that the temporary ban on industrial action, which was imposed in 1998 and subsequently lifted in 1999, was never decided by the High Court.

202. The Committee stresses that only in cases of acute national crisis important restrictions could be imposed on the right to strike (see Digest, op. cit., para. 527).

203. The Committee requests the Government to keep it informed on developments on all the questions raised.

Case No. 2081 (Zimbabwe)

204. At its June 2003 meeting, the Committee urged the Government to take the necessary measures to amend section 120 of the Labour Relations Act, which gives sweeping powers to the Government to interfere in the running of the affairs of trade unions and asked to be kept informed of developments in this regard.

205. In a communication dated 30 July 2003, the Government maintained that the provision in question protects workers' funds and properties from being used for non-worker activities. The Government further explained that such provision was only applied once the affected members or trade unions had approached the Government with sound information to warrant an investigation. According to the Government, the current scenario where trade unions are heavily involved in politics makes this position more necessary.

206. The Committee is not convinced by the Government's explanations and reiterates that the text of section 120 of the Labour Relations Act is incompatible with the provisions of Convention No. 87. The Committee deeply regrets that no progress whatsoever has been achieved in this matter three years after the first examination of the case. Therefore, the Committee is bound to recall its previous recommendations (see 331st Report, paras. 109-110).

207. The Committee recalls once again that section 120 gives rise to two different sets of problems from the standpoint of freedom of association. Paragraphs (a) and (b) of subsection (2) of section 120 authorize an investigator appointed by the Minister to enter trade union premises and question any person employed there at all reasonable times and without prior notice. The Committee has emphasized in this respect that the right of the inviolability of trade union premises necessarily implies that the public authorities may not insist on entering such premises without prior authorization or without having obtained a legal warrant to do so and any search of trade union premises, or of unionists' homes, without a court order constitutes an extremely serious infringement of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 175 and 177). Moreover, searches of trade union premises should be made only following the issue of a warrant by the ordinary judicial authority where that authority is satisfied that there are reasonable grounds for supposing that evidence exists on the premises material to a prosecution for a penal offence and on condition that the search be restricted to the purpose in respect of which the warrant was issued (see Digest, op. cit., para. 180). The Committee recalls that paragraphs (a) and (b) of subsection (2) clearly do not respect the principles enunciated above.

208. Secondly, as regards paragraph (c) of subsection (2), which empowers an investigator, at all reasonable times and without prior notice, to inspect and make copies and take extracts from any books, records or other documents on trade union premises, the Committee has previously stated that the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions. Moreover, as regards certain measures of investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which hamper a union's exercise of the right to publicity or the disclosure of information which might be confidential (see Digest, op. cit., paras. 443 and 444). The Committee notes that the powers of supervision contained in paragraph (c) of subsection (2) are not limited to exceptional cases; rather this provision gives excessive powers of inquiry to the administrative authorities into financial management of trade unions, thereby violating the right of workers' and employers' organizations to organize their administration without interference by the public authorities.

209. The Committee strongly urges the Government to amend section 120 of the Labour Relations Act and to keep it informed of developments.

210. Finally, as regards Cases Nos. 1951 (Canada), 1955 (Colombia), 1962 (Colombia), 1970 (Guatemala), 1973 (Colombia), 1975 (Canada), 1991 (Japan), 1996 (Uganda), 2006 (Pakistan), 2014 (Uruguay), 2051 (Colombia), 2067 (Venezuela), 2083 (Canada), 2105 (Paraguay), 2125 (Thailand), 2126 (Turkey), 2127 (Bahamas), 2129 (Chad), 2133 (The former Yugoslav Republic of Macedonia), 2139 (Japan), 2140 (Bosnia and Herzegovina), 2141 (Chile), 2144 (Georgia), 2147 (Turkey), 2150 (Chile), 2156 (Brazil), 2162 (Peru), 2163 (Nicaragua), 2166 (Canada), 2167 (Guatemala), 2169 (Pakistan), 2173 (Canada), 2175 (Morocco), 2176 (Japan), 2180 (Canada), 2181 (Thailand), 2182 (Canada), 2192 (Togo), 2196 (Canada), 2206 (Nicaragua), 2220 (Kenya), 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. 1952 (Venezuela), 1965 (Panama), 2048 (Morocco), 2084 (Costa Rica), 2104 (Costa Rica), 2134 (Panama), 2146 (Serbia and Montenegro), 2154 (Venezuela), 2160 (Venezuela), 2229 (Pakistan) and 2243 (Morocco), which it will examine at its next meeting.