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 11, 12 and 19 March 2004, under the chairmanship of Professor Paul van der Heijden.

2. The members of Venezuelan, Pakistani and Salvadorian nationality were not present during the examination of the cases relating to Venezuela (Cases Nos. 2088 and 2249), Pakistan (Case No. 2096) and El Salvador (Case No. 2299), respectively.

3. Currently, there are 110 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 31 cases on the merits, reaching definitive conclusions in 18 cases and interim conclusions in 13 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. 1787 (Colombia), 2189 (China), 2249 (Venezuela) and 2268 (Myanmar) 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. 2305 (Canada), 2306 (Belgium), 2307 (Chile), 2308 (Mexico), 2309 (United States), 2311 (Nicaragua), 2312 (Argentina), 2314 (Canada), 2315 (Japan), 2317 (Republic of Moldova), 2318 (Cambodia), 2319 (Japan), 2320 (Chile), 2321 (Haiti), 2322 (Venezuela), 2323 (Islamic Republic of Iran), 2324 (Canada) and 2325 (Portugal) 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), 2177 (Japan), 2183 (Japan), 2228 (India), 2262 (Cambodia), 2270 (Uruguay), 2273 (Pakistan), 2276 (Burundi), 2278 (Canada), 2283 (Argentina), 2285 (Peru), 2289 (Peru), 2292 (United States), 2294 (Brazil), 2302 (Argentina), 2303 (Turkey) and 2304 (Japan).

Partial information received from governments

7. In Cases Nos. 2097 (Colombia), 2138 (Ecuador), 2203 (Guatemala), 2211 (Peru), 2214 (El Salvador), 2236 (Indonesia), 2244 (Russian Federation), 2248 (Peru), 2265 (Switzerland), 2267 (Nigeria), 2274 (Nicaragua), 2287 (Sri Lanka) and 2298 (Guatemala), 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. 2046 (Colombia), 2197 (South Africa), 2200 (Turkey), 2215 (Chile), 2217 (Chile), 2222 (Cambodia), 2224 (Argentina), 2239 (Colombia), 2241 (Guatemala), 2253 (China/Hong Kong Special Administrative Region), 2254 (Venezuela), 2256 (Argentina), 2258 (Cuba), 2259 (Guatemala), 2266 (Lithuania), 2269 (Uruguay), 2271 (Uruguay), 2279 (Peru), 2280 (Uruguay), 2282 (Mexico), 2290 (Chile), 2293 (Peru), 2295 (Guatemala), 2296 (Chile), 2297 (Colombia), 2300 (Costa Rica), 2310 (Poland), 2313 (Zimbabwe) and 2316 (Fiji), the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting.

Urgent appeals

9. As regards Cases Nos. 2111 (Peru) and 2257 (Canada), 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

10. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Canada (Case No. 2277), Russian Federation (Case No. 2251) and Zimbabwe (Cases Nos. 1937 and 2027).

Question of procedure

11. The Committee noted that the Credentials Committee found itself before a particularly disturbing situation: the circumstances in which governments nominated Employers' and Workers' delegates appeared to reveal serious breaches of the independence of employers' or workers' organizations.

12. The Committee equally noted that during the discussion of this question within the LILS Committee in November 2003 (see document GB.288/10/1, paragraphs 65-69), a great majority of Committee members were in favour of the Credentials Committee referring cases to the Committee on Freedom of Association subject to the following conditions:

- the case should not yet have been examined by the Committee on Freedom of Association;

- the decision by the Credentials Committee to refer a case should be unanimous;

- the referral proposal should be endorsed by the Conference.

13. Taking into account these elements, the Committee decided that it would examine on an experimental basis any objection raising questions which have not yet been examined by the Committee, relates to a violation of freedom of association principles and has been referred to it by the Conference pursuant to a unanimous proposal by the Credentials Committee. The text of the objection thus referred would be sent to the government for its observations prior to any examination.

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

Case No. 2221 (Argentina)

14. The Committee last examined this case, which concerns allegations of restrictions of the right to bargain collectively, at its November 2003 meeting when it requested the Government to undertake detailed consultations with the parties concerned with a view to remedying the imbalance in the Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors and to promote free and voluntary collective bargaining between newspaper and magazine vendors' unions and employers in the sector. The Committee requested the Government to keep it informed of developments in this regard (see 332nd Report, paras. 211-227).

15. In a communication of 20 January 2004, the Government states that it has communicated the Committee's recommendations to the president of the Supervisory Commission of the National Register of Newspaper and Magazine Vendors and Distributors.

16. The Committee takes note of this information. The Committee expresses the hope that measures will continue to be taken in order to remedy the imbalance in the composition of the abovementioned tripartite Supervisory Commission. The Committee requests the Government to keep it informed of all new measures adopted in this respect.

Case No. 1943 (Canada/Ontario)

17. The Committee last examined this case, which concerned government interference in the impartiality of the process of arbitration, at its November 2003 meeting (see 332nd Report, paras. 25-27). On that occasion, it noted the decision of the Supreme Court of Canada in this matter which confirmed the views of the Committee, urged the Government to take measures to ensure that the neutrality and impartiality of arbitration boards be guaranteed in law and practice in order to maintain the confidence of both sides in the system, and requested to be kept informed of developments.

18. In a communication of 17 December 2003, the Government of Ontario informed the Committee that, when the Government passed in June 2003 the Back to School (Toronto Catholic Elementary) and Education and Provincial Schools and Negotiations Amendment Act, 2003, the legislation included the following wording as regards the appointment of a mediator-arbitrator, if such appointment became necessary: "The Minister shall appoint a person who, in the opinion of the Minister, has the requisite experience as a mediator-arbitrator or expertise in labour relations and education matters."

19. Whilst noting this information with interest as regards the conclusion of the present case, the Committee observes that this legislative language was introduced on an ad hoc basis and in the context of a back-to-work legislation. It hopes that the Government, in future, will refrain from resorting to such legislation. The Committee emphasizes nevertheless that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned.

Cases Nos. 1951, 1975 and 2182 (Canada/Ontario)

20. The Committee last examined these cases at its March 2003 meeting (see 330th Report, Case No. 1951, paras. 32-34; Case No. 1975, paras. 35-38; Case No. 2182, paras. 306-334) where it requested to be kept informed of developments.

21. In a communication of 17 December 2003, the Government of Ontario informed the Committee that the new Government is currently reviewing these cases to examine whether a policy change needs to be contemplated.

22. Noting this information, the Committee recalls the conclusions and recommendations made in these cases and invites the Government to take appropriate measures in full conformity with the principles of freedom of association. It requests the Government to keep it informed of developments concerning these cases.

Cases Nos. 2166, 2173, 2180 and 2196 (Canada/British Colombia)

23. The Committee examined these cases on the merits at its March 2003 session (see 330th Report, paras. 239-305). These cases concerned violations of freedom of association principles on collective bargaining in respect of public employees through several pieces of legislation in the health (Bills Nos. 2, 15 and 29) and education (Bills Nos. 18, 27 and 28) sectors.

24. As regards the education sector, the Committee had recommended that the Government: repeal Bill No. 18; adopt a flexible approach, eventually amending Bill No. 27 to give the parties an opportunity to vary by agreement the working conditions unilaterally imposed by the legislation; and include in the mandate of the commission established under Bill No. 27, the issues raised in connection with Bill No. 28 (330th Report, para. 305(a)(i)-(iv)).

25. As regards the health and social services sector, the Committee had recommended that the Government: amend the legislation to ensure that workers enjoy adequate compensation measures for the limitation placed on their right to strike; adopt a flexible approach, eventually amending Bill No. 15 to give the parties an opportunity to vary by agreement the working conditions unilaterally imposed by the legislation; and hold full and detailed consultations with representative organizations, with the help of a neutral and independent facilitator, to review the collective bargaining issues raised in connection with Bill No. 29 (330th Report, para. 305(b)(i)-(iii)).

26. The Committee further requested the Government in future: to respect the autonomy of bargaining partners in reaching negotiated agreements and refrain from having recourse to legislatively imposed settlements; and to hold meaningful consultations with representative organizations when workers' right of freedom of association and collective bargaining may be affected. Finally, the Committee requested the Government to provide it with judicial decisions concerning pending court challenges in connection with the complaints, and to keep it informed of all developments (330th Report, para. 305(c)-(f)).

27. In its communication of 8 January 2004, the Government of British Columbia states that to give effect to Bill No. 27, the Minister of Labour appointed an individual to consult with interested parties and recommend terms of reference for the review commission. Based on that report, the Minister appointed, in December 2003, a commissioner who will consult with groups in the education sector and review procedures in other jurisdictions to recommend procedures for a new collective bargaining arrangement. It is anticipated that the commissioner will complete his work by the fall of 2004. Although the Committee on Freedom of Association had recommended to include the issues raised in connection with Bill No. 28 in the mandate of the commission, the individual who framed the terms of reference for the review commission deliberately omitted the scope of bargaining issues from said terms. For the Government, the commission will be in a better position to develop a new collective bargaining process if the divisive and inflammatory issues concerning the scope of bargaining are not directly addressed at this time.

28. The Government also mentions that it had reached with the association of unions in the facilities subsector of the health sector a tentative agreement that provided clear limits on the number of non-clinical health-care positions that could be contracted out under the provisions of Bill No. 29; however that tentative agreement was rejected by the members of the unions in votes held in May 2003.

29. Lastly, the Government provides a copy of a judgement of the B.C. Supreme Court upholding the constitutionality of Bill No. 29. The health sectors unions have obtained leave to appeal to the B.C. Court of Appeal but have taken no further steps in this respect.

30. The Committee takes note of this information. It requests the Government to keep it informed of steps taken to implement the recommendations made when it examined the merits of these complaints at its March 2003 session. The Committee requests the Government to continue to keep it informed on the conclusions of the review commission established under Bill No. 27, and on the outcome of judiciary proceedings filed in connection with the complaints.

Case No. 2141 (Chile)

31. At its November 2002 meeting, the Committee made the following recommendations on the issues still pending (see 329th Report, para. 34):

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

32. In its communication of 12 January 2004, the Government states that the workers who were dismissed and who petitioned the judicial authorities in this regard individually reached a financial agreement with the enterprise. There are currently no disputes at the enterprise and a new collective agreement has been signed.

33. The Committee notes this information and once again requests the Government to keep it informed of the outcome of the legal proceedings concerning the death of Luis Lagos and the serious injuries sustained by Donaldo Zamora during the strike held at the FABISA S.A. enterprise in May 2001.

Case No. 2150 (Chile)

34. At its November 2002 meeting, the Committee requested the Government and the authorities of the municipality of Empedrado to take measures to reinstate the trade union leader Juana Contreras Labarca, without loss of earnings, in a comparable post if the one she occupied had been eliminated, and to keep it informed of any developments (see 329th Report, para. 315).

35. In a communication dated 12 February 2003, the Government states that the trade union official has still not been reinstated owing to the lack of municipal budgetary resources.

36. The Committee notes this information and requests the Government to continue to make every effort towards ensuring the reinstatement of Juana Contreras Labarca, without loss of pay, in a comparable post if the one she occupied had been eliminated, and to keep it informed of any developments.

Case No. 2151 (Colombia)

37. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 28-38). On that occasion, the Committee made the following recommendations:

1. 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 requests the Government to provide it with information on the inquiries that have been initiated.

2. As regards the allegations relating to the dismissal of SINTRABENEFICENCIAS officials for setting up trade union in the Cundinamarca district, and on which the territorial directorate of Cundinamarca was to issue the corresponding decision, the Committee requests the Government to provide it with a copy of this decision.

3. With regard to the refusal to grant trade union leave and further dismissals of SINTRASISE officials in the Transport Department, the Committee requests the Government to send copies of the appeals for reversal and motions of appeal that were rejected.

4. 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 and to take the necessary measures to ensure that the right of public servants to collective bargaining is respected in accordance with the provisions of Convention No. 151.

5. With regard 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.

38. In its communication of 24 December 2003, the Government states that, with regard to the dismissal of trade union officials of the Institute for Urban Development (SINDISTRITALES and SINTRASISE) and Bogotá Council (SINDICONCEJO) without the corresponding suspension of trade union immunity, the Ministry of Social Protection has no authority to begin an administrative labour investigation.

39. The Committee notes this information and requests the Government to provide information on whether, prior to carrying out the dismissal of the trade union officials at the Institute for Urban Development (SINDISTRITALES and SINTRASISE) and Bogotá Council (SINDICONCEJO), the enterprises or institutions in question requested judicial authorization, as required in the legislation.

40. The Committee regrets to note that the Government has not sent the information and observations requested regarding the other outstanding issues covered in the preceding recommendations (2-5), and requests it to do so without delay.

Case No. 2237 (Colombia)

41. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 39-41). On that occasion, the Committee requested the Government to take steps to see that an investigation was carried out without delay to determine whether a number of members of SINTRA IL at the Hilazas Vanylon Enterprise S.A. had renounced their membership as a result of the wage discrimination carried out by the enterprise because of their trade union membership.

42. In its communication of 24 December 2003, the Government states that the territorial directorate of Atlántico carried out an administrative labour investigation and issued Decision No. 000759 of 10 July 2001 (text attached), which declared that it was not competent to decide legal disputes and that competency lay, in this case, with the ordinary labour courts.

43. The Committee notes this information and notes that the text of Decision No. 000759 implies that there is a disparity in the wages paid to the different workers working in the same departments at the Hilazas Vanylon Enterprise S.A. Although the Committee has no other facts, it requests the Government to ensure that workers at the enterprise are not discriminated against with regard to wages because of their trade union membership, and that the Government keep it informed of any steps taken in this respect.

Case No. 2084 (Costa Rica)

44. At its November 2001 meeting, the Committee requested the Government to keep it informed of the final administrative decisions and judicial verdicts handed down in relation to the case of trade union leader Mario Alberto Zamora Cruz (see 326th Report, paras. 65-67).

45. In its communications of 17 March and 2 September 2003, the Government states that, in Decision No. 434 of 2003, the Small Claims Labour Tribunal, Second Division, rejected the complaint filed by Mario Alberto Zamora Cruz for infringement of the labour legislation (monitoring this trade union official) after having indicated that there was no evidence of personal or trade union harassment against this person, or that his trade union leave had been restricted. The Government adds that it will provide the information on the decision relating to the dismissal of this trade union official when it is handed down by the Civil Service Tribunal.

46. The Committee requests the Government to transmit the decision handed down relating to the dismissal of trade union official Mario Alberto Zamora Cruz.

Case No. 2104 (Costa Rica)

47. At its November 2002 meeting (see 329th Report, paras. 38-40) and its June 2003 meeting (see 331st Report, paras. 29-32), the Committee made the following recommendations on the pending questions:

- the Committee requests the Government to inform it of the decisions handed down relating to: (1) the dismissal of trade union official Luis Enrique Chacón; (2) the unfair labour practices at the University of Costa Rica verified by the administrative authorities; and (3) the violations of the Ministry of Education in the matter of trade union leave;

- the Committee notes with interest the various initiatives taken by the Ministry of Labour and other authorities (proposed constitutional and legislative amendments, etc.) with a view to guaranteeing full enjoyment of the right of collective bargaining in the public sector, including bills to ratify Conventions Nos. 151 and 154, and notes that an ILO official has provided technical assistance in one of these initiatives. The Committee requests the Government to keep it informed of developments with regard to these issues.

48. In its communications of 2 September and 17 November 2003, the Government states that the legal proceedings relating to this case are awaiting decisions. Moreover, the Government outlines the steps taken and the efforts made by the Ministry of Labour and Social Security with the Legislative Assembly for the ratification of Conventions Nos. 151 and 154, the draft acts of which are to be found under agenda items 17 and 18 of the "first discussions in the second part of the plenary session". All of the above shows the Government's interest and goodwill in ensuring collective bargaining in the public sector.

49. The Committee notes this information and requests the Government to keep it informed with regard to these issues.

Case No. 2208 (El Salvador)

50. At its November 2003 meeting, the Committee made the following recommendation on the outstanding issues (see 332nd Report, para. 54):

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.

51. In its communication of 8 January 2004, the Government states that it will keep the Committee informed of the decisions made by the labour courts concerning the dismissals of the 11 union officers. The Government states that in keeping with the conciliatory agreement reached at the General Labour Directorate, the enterprise has paid these union officers a salary for each month. As regards the 30 dismissed union members, the Government states that they received full compensation.

52. The Committee notes this information and requests the Government to keep it informed of the rulings handed down on the dismissals of 11 union officers at Lido, S.A.

Case No. 2201 (Ecuador)

53. The Committee last examined this case at its November 2003 meeting. On that occasion, on examining allegations concerning violent acts perpetrated against strikers and workers, the Committee deplored the violent acts perpetrated against strikers and workers at the Los Alamos ranch in May 2002 and requested the Government to communicate the text of the ruling handed down. It also hoped that those who had suffered injury or loss of property would be properly compensated (see 332nd Report, paras. 536-550).

54. In a communication dated 15 December 2003, the Government states that as soon as the abovementioned events at the Los Alamos ranch came to light, the Prosecutor of the city of Naranjal handed down instruction No. 050-2002 against Mireses Obando, Carlos Bahamonde, Temistocles Navas, Angel Estrada, Hernán Nazareno, Roger Ducan, Marcos Galarza, Findley Gallegos, Carlos Cabindo, Mauro Sánchez, Arístides Lara, José Barroso and Víctor Argoti, for the offences of injury and illegal possession of arms. Following various formalities, the Prosecutor pressed charges and the judge issued a committal order against the abovementioned accused as being responsible for the offence defined in article 162 in agreement with article 470 of the Penal Code. The abovementioned order was challenged by the accused by way of appeal proceedings, by reason of which the Fifth Division of the Court of Justice of Guayaquil revoked it handing down a dismissal order.

55. The Committee notes this information. The Committee deeply regrets that the serious acts of violence (12 workers wounded; two of them seriously), ill treatment and acts of aggression against trade unionists and against their property at the Los Alamos ranch dating back to May 2002, have remained unpunished following the dismissals handed down by the judicial authority. In this regard, the Committee requests the Government to continue taking measures to punish those responsible for the acts of violence in question and to ensure that the victims are properly compensated.

Case No. 2133 (The former Yugoslav Republic of Macedonia)

56. During the previous examination of this case which concerns serious obstacles to the registration of employers' organizations, including the complainant Union of Employers of Macedonia (UEM) (see 329th Report, paras. 535-548), the Committee requested the Government to initiate discussions urgently with the UEM with a view to finalizing its registration process under a status that corresponds to its objectives as an employers' organization. It also requested the Government to bring its legislation and practice concerning registration of employers' organizations into conformity with Convention No. 87 and to take all necessary measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers' and workers' organizations into conformity with Convention No. 98.

57. In a communication dated 11 November 2003, the Government states that the Labour Relations Act contains provisions recognizing freedom of association, and regulating the activities and protection of the representatives of workers' and employers' organizations. However, although on the basis of this Act the Ministry of Labour and Social Policy is running a special Register of Trade Unions, there is no corresponding Register of Employers' Associations (article 81). The creation of employers' organizations used to be governed by the Act on the Economic Chamber which has been replaced in the meantime with the new Act on the Economic Chamber. The latter has been disputed before the Constitutional Court, which has not handed down its decision yet. The Government adds that due to these reasons, certain associations have been registered on the basis of the Act on Citizens' Associations. The Government notes that the basis, conditions and way of establishing employers' associations are not regulated in the new Act on the Economic Chamber and the Act on Citizens' Associations, despite the fact that employers' associations constitute one of the participants in the tripartite social partnership framework, and emphasizes that the law needs to be complemented in order to address the need for employers' associations to be registered in a special register to be run by the Ministry of Labour and Social Policy. Moreover, criteria of representativeness should be established. The Government finally indicates that it is in the process of harmonizing the national law to EU legislation (inter alia, with regard to industrial relations), and that foreign experts have been engaged in order to propose measures regarding this issue. Taking into account their recommendations, appropriate changes and additions will be proposed regarding the Labour Relations Act.

58. The Committee recalls that the facts of this case date as far back as 1998 and notes with concern that the Government does not provide any information on any steps taken to initiate discussions with the Union of Employers of Macedonia (UEM) with a view to finalizing the registration of this organization under a status that corresponds to its objectives as an employers' organization. The Committee requests both the Government and the complainant to provide information on the current status of the UEM and reiterates its previous request to finalize the registration of the UEM urgently under a status that corresponds to its objectives as an employers' organization.

59. The Committee observes from the Government's response that although the Labour Relations Act requires employers' organizations to be registered in order to obtain legal personality and commence their activities, no such procedure exists in law or in fact. It also notes that although the Government acknowledges the need to adopt new legislation in order to afford a procedure for the registration of employers' organizations, it does not provide any indication as to the steps taken or the timetable set for the adoption of such legislation. The Committee considers that the current state of law and practice impairs the establishment of employers' organizations and amounts to a denial of freedom of association. It recalls that the right of employers and workers to establish and join organizations of their own choosing cannot be said to exist unless such freedom is fully established and respected in law and in fact. In particular, "employers' occupational associations" should not be restricted by excessively detailed provisions which discourage their establishment, contrary to Article 2 of Convention No. 87, which provides that employers, as well as workers, shall have the right to establish organizations of their own choosing without previous authorization (Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 271 and 252). The Committee requests the Government to take all necessary steps urgently so as to bring its law and practice into conformity with freedom of association principles, either by establishing a procedure for the registration of employers' organizations or by repealing the requirement of registration altogether, and to keep it informed in this respect. Noting that the Government has engaged foreign experts in order to propose measures regarding this issue, the Committee recalls that the technical assistance of the Office remains at the Government's disposal, and urges the Government to make use of such assistance.

60. The Committee finally observes that the Government provides no information on the fact that it is practically impossible for employers' organizations, including the complainant organization, to engage in collective bargaining in the absence of registration and legal personality. The Committee has pointed out the importance which it attaches to the right of representative organizations to negotiate, whether these organizations are registered or not (Digest, op. cit., para. 784). The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers' and employers' organizations should have the right to organize their activities and to formulate their programmes (Digest, op. cit., para. 782). The Committee requests the Government to take all necessary measures so as to ensure that free and voluntary negotiations between employers' and workers' organizations take place regardless of registration of such organizations, and to abstain from any interference which would have the effect of preventing employers' organizations from engaging in negotiations with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee requests to be kept informed in this respect.

Cases Nos. 2017 and 2050 (Guatemala)

61. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 68-76). On that occasion, the Committee made the following recommendations:

- With respect to the La Exacta farm, the Committee requests the Government to specify whether the friendly agreement to resolve the issue 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, includes the reinstatement of the workers who were dismissed, with regard to whom legal orders for reinstatement were issued.

- With regard to the closure of the CARDIZ S.A. company following the establishment of the trade union and the detention of the workers who remained on company premises to prevent the removal of company equipment, the Committee requests the Government to keep it informed of the outcome of the proceedings.

- With regard to the refusal of the La Aurora National Zoological Park to negotiate a new collective agreement with the trade union and the encouragement of a solidarity association, the Committee requests the Government to provide clarification on these issues.

- Furthermore, with respect to:

(1) the allegations relating to the kidnapping, assaults and threats against the trade unionists of the Santa Maria de Lourdes farm, Walter Oswaldo Apen Ruiz and his family, the Committee requests the Government to send its observations and to ensure that the safety of the trade union member, which had been threatened, is guaranteed;

(2) the allegations relating to the murder of trade union members Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee urges the Government to send information in this respect without delay;

(3) 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:

(4) the alleged threats against Miguel Angel Ochoa and Wilson Armelio Carreto López, the Committee invites the complainant organizations to send comments on the Government's observations that state that these people do not belong to a trade union and that they have not filed complaints of threats with the Office of the Attorney-General;

(5) the dispute involving the Banco de Crédito Hipotecario Nacional, the Committee requests the Government to keep it informed of progress in the negotiating committee on the issues;

(6) the allegations of dismissal of the founders of the trade union formed in 1997 in the Hidrotecnia S.A. company, the Committee requests the Government to keep it informed with regard to the investigation that is being carried out;

(7) 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 and the dismissals threatened and carried out by that company (25 dismissals at five farms), the Committee requests the Government to keep it informed of developments in this situation;

(8) the Tamport 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;

(9) 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;

(10) the Committee also 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.

62. In its communication of 16 October, the Trade Union of Workers of Guatemala (UNSITRAGUA) states that:

(1) with regard to the La Exacta farm, the workers have still not been reinstated and the former owners have sold the facilities, making it more difficult to comply with the court orders for reinstatement;

(2) with regard to the dispute involving the Banco de Crédito Hipotecario Nacional, following the mass dismissals and the refusal of the bank to comply with the court orders for reinstatement, the bank proceeded to employ new workers on a short-term basis, excluding them from the benefits of the collective labour agreement and from a variety of other benefits that are enjoyed by permanent workers;

(3) with regard to the Tamport S.A. company, the legal proceedings for partial payment of the wages owed are still being processed as a result of a number of delays in the proceedings, in spite of the fact that the closure of the enterprise was considered illegal by the judicial authority;

(4) with regard to the alleged anti-union discrimination at the Ace International S.A. company, the judicial authorities, the Appeals Court, the Supreme Court of Justice and the Constitutional Court rejected the legal actions lodged;

(5) with regard to the Corporacíon Bananera S.A. company, the administrative order to reinstate the workers has still not been acted on and, in spite of the Government having recognized that the trade union SITRACOBSA tends to favour the company, no proceedings have begun to dissolve it.

63. In its communication of 9 January 2004, the Government states that:

- with regard to the La Exacta farm, the agreement for financial compensation was signed on 24 October 2003 between COPREDEH and workers' representatives, relatives of the victims for whom the civil and criminal actions are still pending. The Government adds that, in the framework of the agreement, the workers requested the intervention of the Ministry of Labour and Social Security so that, through mediation, the parties might reach an agreement that was satisfactory to all of them. In the hearing on 17 December 2003, called by the General Labour Inspectorate, the new owners of the La Exacta farm stated that they were unaware of the labour disputes at the company and that it was for the former owners to assume responsibility for these. The Government states that the next hearing has been called for 16 January 2004;

- with regard to the refusal of the La Aurora National Zoological Park to negotiate a new collective agreement with the trade union and the fact that it has encouraged a solidarity association, the parties went to the Arbitration Court, which handed down a decision in December 2003. This decision is being appealed by the enterprise;

- with regard to 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 Government states that there are no dismissals at the company and that the workers are well paid, have no disputes with the company and are members of SITRABI.

64. In its communication of 27 October 2003, the Government states that the General Labour Inspectorate provided the information in a communication dated 25 October 2003 that the Trade Union of Workers of the Corporacíon Bananera S.A. company (SITRACOBSA) was legally recognized up to 19 September 2003, that this is an active organization with approved statutes wherein there is no record that its members represent employers' interests and that, in the past three years, it has complied with all the legal requirements.

65. With regard to the La Exacta and/or San Juan El Horizonte farm, the Committee notes the information provided by the complainant organization and the observations of the Government relating to the friendly agreement signed on 24 October 2003. The Committee notes that according to the information received in the framework of this agreement, the workers requested the intervention of the Ministry of Labour in order to obtain a solution that was satisfactory for all parties and that in one of the hearings arranged by the Labour Directorate, the new owners stated that they were not aware of the existence of labour disputes in the company and emphasized that these were the responsibility of the former owners. The Committee requests the Government to specify whether the agreement mentioned includes the reinstatement of the dismissed workers with regard to whom legal orders for reinstatement were issued, and to keep it informed of the outcome of the hearing of 16 January at the Ministry of Labour with the new owners and the workers' representatives.

66. With regard to the dispute at the La Aurora National Zoological Park, which was lodged with the Arbitration Court, the Committee requests the Government to keep it informed of the legal ruling with regard to the arbitrator's decision issued in December 2003, which was appealed by the company.

67. 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 Committee notes the Government's information with regard to there being no disputes at the company.

68. With regard to the allegations of the dissent from SITRACOBSA over the decision by the Ministry of Labour to cancel the suspension of the contracts of workers belonging to the legitimate trade union (SITECOBSA) of the Corporacíon Bananera S.A. company, the Committee notes the allegations of the complainant organization relating to the bias of SITRACOBSA in favour of the company and the lack of measures taken to dissolve this body, and the Government's reply in which it denies that SITRACOBSA represents the employers' interests. The Committee requests the Government to send its observations with regard to the alleged suspension of employment contracts for workers belonging to the other trade union (SITECOBSA) without delay.

69. The Committee regrets that the complainant organizations have not sent the information requested on the Government's statements that Miguel Angel Ochoa and Wilson Armelio Carreto López (who had been threatened) are not members of any trade union and that no complaints have been sent in respect of threats against these persons to the Attorney-General's Office. The Committee requests the complainant organizations to send their observations without delay.

70. The Committee regrets that the Government has sent no information on the other issues that remain pending since its last examination of the case and on the issues for which UNSITRAGUA has sent new information, and it urges the Government to send the information and observations requested on the following without delay:

- with regard to the closure of the CARDIZ S.A. company following the establishment of a trade union in the company and the unlawful detention of the workers who remained on company premises to prevent the removal of company equipment, the Committee requests the Government to send information on the outcome of the legal proceedings under way;

- with regard to 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 and to ensure that the safety of the trade union member, which has been threatened, is guaranteed;

- with regard to the allegations relating to the murder of trade union members Efraín Recinos, Basilio Guzmán, Diego Orozco and José García Gonzáles, the injuries to 11 workers and the detention of 45 workers of the La Exacta and/or San Juan El Horizonte farm, the Committee 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 dispute involving the Banco de Crédito Hipotecario Nacional, the Committee requests the Government to keep it informed of progress in the negotiating committee on all the ongoing issues and on the new allegations presented by UNSITRAGUA;

- with regard to the allegations of dismissal of the founders of the trade union formed in 1997 in the Hidrotecnia S.A. company, the Committee requests the Government to keep it informed of the investigation being carried out;

- with regard to the Tamport S.A. company, the Committee requests the Government to inform it 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 to send the judicial rulings handed down by the Appeals Court, the Supreme Court of Justice and the Constitutional Court rejecting the proceedings begun with regard to the serious allegations of discrimination and intimidation.

Case No. 2230 (Guatemala)

71. At its November 2003 meeting, the Committee examined this case relating to the dismissal of 42 trade union members from the municipality of Esquipulas without the judicial authorization provided for in the Labour Code (see 332nd Report, paras. 77-79), on which occasion it requested the Government to inform it of the ruling handed down for the proceedings that the Government stated it were under way.

72. In its communications of 4 November 2003 and 9 January 2004, the Government states that the preliminary proceedings begun in the framework of a judicial complaint against the mayor (who refuses to comply with the order for reinstatement issued by the administrative authorities and who, as a result, has already been fined) were rejected by the competent courts and that the trade union members have still not been reinstated.

73. The Committee notes this information and requests the Government to continue to make every effort to ensure that the dismissed workers are reinstated and to keep it informed of any judicial or other type of complaint initiated in this respect.

Case No. 2118 (Hungary)

74. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 80-83). It requested the Government to keep it informed of the outcome of the legal proceedings pending before the Constitutional Court with regard to the constitutionality of section 33 of the Labour Code, and it also requested a copy of Internal Order Gy. 7-76/2002.

75. In a communication dated 7 January 2004, the Government informs the Committee that the Constitutional Court has still not made its ruling on the constitutionality of section 33 of the Labour Code and that no ruling should be expected in the coming months. The Government states that it does not wish to amend section 33 before the ruling of the Constitutional Court is made, since it considers that the legislation has to be in line with both the rulings of the Constitutional Court and the ILO standards. The Government also provides a copy of Internal Order Gy. 7-76/2002 of the Hungarian Railway Company which repeals 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.

76. The Committee takes note of the information provided by the Government. As concerns the constitutionality of section 33 of the Labour Code, the Committee recalls that the Committee of Experts, in December 2003, considered that problems may arise when the law stipulates that trade unions must attain a percentage of 65 per cent (individually) or 50 per cent (jointly) in order to be recognized as bargaining agents, since unions which fail to secure this excessively high threshold are denied the possibility of bargaining, and requested the Government to take all necessary measures to amend section 33 so as to lower the minimum threshold requirements set for recognition as a bargaining agent, and ensure that, where no trade union reaches these thresholds, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members. The Committee therefore urges the Government to take all necessary measures to amend without delay, 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), and to keep it informed of the measures taken.

Case No. 1890 (India)

77. The Committee last examined this case which concerns the dismissal of Mr. Laxman Malwankar, President of the Fort Aguada Beach Resort Employees' Union (FABREU), the suspension of 15 FABREU members following a strike, and the employer's refusal to recognize the most representative union for collective bargaining purposes, at its November 2001 session, where it requested the Government to keep it informed of developments on all pending issues (see 326th Report, paras. 96-98).

78. In a communication dated 2 January 2004, the Government states that as regards Mr. Malwankar, a hearing concerning his dismissal scheduled before the Industrial Relations Tribunal on 20 January 2003 has been adjourned (Case No. 9/95) and that an order for inquiry was passed on 28 November 2003 concerning his alleged illegal termination (Case No. 27/97). The inquiries concerning Messrs. Ambrose D'Souza and Sitaran Rathod are in progress; Mr. Ambrose submitted a statement on 19 November 2003; the evidence given by Mr. Rathod's witnesses is being examined. The case concerning Mr. Shyam Krekar was listed for hearing on 20 November 2003. The findings of the inquiry officer in respect of Mr. Mukund Parulekar are still awaited.

79. While noting that information, the Committee observes with deep regret once again that this complaint was filed in May 1996 and that the Committee examined it for the first time on the merits at its June 1997 session; Mr. Malwankar was dismissed in January 1995 and the other workers were suspended in April 1995. Recalling that justice delayed is justice denied, the Committee requests the Government to take rapidly all appropriate measures to ensure that these proceedings are concluded, in particular as regards Mr. Malwankar's dismissal. The Committee once again requests the Government to keep it informed of developments and expects a rapid conclusion of all these cases, in conformity with freedom of association principles.

Case No. 2158 (India)

80. The Committee last examined this case at its November 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, Pataka Biri Karmachari Union; 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 332nd Report, paras. 87-89).

81. In a communication dated 15 January 2004, the Government indicates that information is being collected from the State Government of West Bengal as to the conduct of an independent judicial inquiry concerning the murder of trade union leader Ashique Hossain and the actual situation of the complainant organization. As to the progress of the investigation into allegations of serious acts of anti-union discrimination, the Government refers to previously provided information according to which 97 employees of the Pataka Biri Company called at the Suti Police Station and reported that they were not members of the Pataka Biri Karmachari Union as alleged by Ashique Hossain. The latter came to the police station, on his own and uncalled for, and gave a written declaration to those 97 employees that they were not members of his union. He then left the police station at his own accord. Thus, the allegation of 16-hours' "obstruction" at the Suti police station by those 97 persons was not found to be true. Moreover, Mr. Hossain failed to produce any proof that he had called on the Border Security Force (BSF) for his security on 24 September 2001 and also failed to name any one criminal alleged to have been engaged to suppress his trade union activities. Finally, he had no record/document to prove his claim to have informed the administration or the Chief Minister from 6 August 2001 to 20 August 2001 of his allegations.

82. The Government further indicates with regard to the dismissal of two apprentices, that the circumstances under which they were dismissed are under examination. Finally, concerning the progress of proceedings before the Calcutta High Court concerning anti-union discrimination, the Government indicates that the necessary follow-up for a quick disposal of this case is being looked into by a section officer of the Labour Directorate of the Government of West Bengal.

83. The Committee notes with regret that information is still being collected from the State Government of West Bengal as to the conduct of an independent judicial inquiry into the murder of trade union leader Ashique Hossain which took place in June 2002. The Committee also notes from the Government's response that Mr. Hossain had made allegations in August/September 2001 that criminals had been engaged to suppress his trade union activities. The Committee notes that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The killing, disappearance or serious injury of trade union leaders and trade unionists requires the institution of independent judicial inquiries in order to shed full light, at the earliest date, on the facts and the circumstances in which such actions occurred and, in this way, to the extent possible, determine where responsibilities lie, punish the guilty parties and prevent the repetition of similar events (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 47 and 51). The Committee requests the Government to take all necessary measures so as to ensure that an independent judicial inquiry into the murder of trade union leader Ashique Hossain is concluded rapidly and to keep it informed in this respect.

84. The Committee also takes note of the information provided by the Government with respect to acts of anti-union discrimination, the dismissal of two apprentices and the proceedings for anti-union discrimination pending before the Calcutta High Court. The Committee requests to be kept informed of the grounds on which two apprentices were dismissed and the progress of proceedings before the Calcutta High Court.

Case No. 2048 (Morocco)

85. The Committee last examined this case at its March 2003 meeting (see 330th Report, paras. 123-125). The Committee recalls that the case concerns a collective labour dispute at the Avitema farm in September 1999, following which two types of judicial proceedings were instituted. Firstly, 21 striking farm workers were given custodial or suspended prison sentences and were fined. Their case was brought to the Court of Appeal in Rabat. Secondly, charges of abuse of power in accordance with section 231 of the Moroccan Penal Code were brought before the Court of the First Instance in Rabat against Mr. Abderrazzak Challaoui, the farmowner, Mr. Bouazza Maâch, a representative of the caïdat of Menzah and Mr. Abdeslam Talha of the auxiliary forces of the Municipality of Aïn Aouda.

86. In a communication dated 2 October 2003, the Government states that the Court of Appeal postponed the hearing regarding the case of Mr. Challaoui, Mr. Maâch and Mr. Talha to 20 November 2003.

87. The Committee takes note of this information. In respect of Mr. Challaoui, Mr. Maâch and Mr. Talha, it observes that, according to the Government's information, the Court of the First Instance appears to have ruled already in this case. Therefore, the Committee requests the Government to provide information concerning the results of the ruling. Furthermore, the Committee expresses the firm hope that the Court of Appeal has already handed down its decision or that it will do so in the very near future, and requests the Government to send it a copy of this decision as soon as possible.

88. Furthermore, in respect of the 21 workers at the Avitema farm, the Committee notes that the Government has not yet sent a copy of the ruling of the Court of Appeal. The Committee recalls that, in its last examination of the case, it noted that the Court of Appeal had suspended certain one-month suspended prison sentences or had confirmed the suspension of some detentions. Nevertheless, the Committee recalls that it cannot understand the precise significance of this "suspension" and that, generally, the Committee cannot reach entirely objective conclusions without the text of the judgement handed down in the appeal (see 330th Report, para. 125). The Committee once again strongly requests that the Government provide it with a copy of the Court of Appeal ruling without delay.

Case No. 2175 (Morocco)

89. The Committee last examined this case at its May-June 2003 meeting (see 331st Report, paras. 54-57). The Committee recalls that this case deals with the refusal by the Professional Association of Moroccan Banks (GBPM), an organization that comprises all the commercial banks operating in Morocco, to engage into dialogue and negotiations with the Banks' National Trade Union (SNB), affiliated to the Democratic Labour Confederation of Morocco (CDT).

90. In its communication dated 12 January 2004, the Government states that, with the aim of resolving the dispute that forms the basis of the present case, the Minister of Employment, Social Affairs and Solidarity sent a letter, of which a copy is attached, to the president of GBPM, inviting him to open dialogue with the SNB/CDT and to inform the Minister of the steps taken. The Government states that it has made every effort to find a solution to the present dispute.

91. The Committee notes this information. The Committee hopes that the GBPM will respond favourably to the Government's invitation, and requests the Government to keep it informed of developments relating to collective bargaining in the banking sector.

Case No. 2243 (Morocco)

92. The Committee last examined this case at its May-June 2003 meeting (see 331st Report, paras. 593-623). The Committee recalls that this case concerns, firstly, the refusal by the Central Carbonated Beverage Company (SCBG) to recognize its workers' trade union executive, which is affiliated to the Democratic Confederation of Labour (CDT), and to engage in dialogue with it, and, secondly, particular acts - including two dismissals - carried out against 20 members or leaders of the trade union executive.

93. In a communication dated 2 October 2003, the Government states that it has made numerous efforts at conciliation in an attempt to find a solution to this dispute. The management of the SCBG consistently refuses to participate in the conciliation meetings organized by the Labour Administration. The Labour Inspectorate has drawn up a violation notice against the employer and sent it to the competent court. Furthermore, the Government adds that it sent the Committee's most recent recommendations to the director of the company and to the Provincial Employment Representative, so that, on receipt of them, he could study them and give a response.

94. The Committee is interested to note the information provided by the Government on the steps that it has taken with a view to starting a dialogue between the SCBG and the trade union executive. In respect of this, the Committee, recalling that governments are bound to ensure that the provisions of Conventions which have been freely ratified are respected in law and in practice throughout their territory, requests the Government to continue to take steps so that the trade union executive duly established can freely carry out its activities within the SCBG and negotiate the workers' conditions of employment directly with the enterprise. It requests the Government to keep it informed in this regard.

95. The Committee also observes that the Government has failed to provide any response regarding the other aspects of the case. The Committee therefore has to repeat its previous recommendations. It once again requests the Government to ensure that inquiries are promptly opened to determine whether: (1) the 20 trade union members named by the complainant organization have been prejudiced because of their trade union activities; (2) Mr. Najahi Mohamed and Mr. Chahrabane Azzedine were dismissed because of their trade union activities. If the anti-union nature of these measures - or part thereof - is proven, the Committee requests the Government to take the necessary steps, as appropriate, to ensure that: (1) the measures affecting the 20 trade union members are immediately lifted; (2) Mr. Najahi Mohamed and Mr. Chahrabane Azzedine are immediately reinstated in their posts, with the payment of wages due. The Committee requests the Government to ensure the strict application of the legislative provisions relating to the protection of workers against anti-union discrimination and to keep it informed on all aspects of the matter.

Case No. 1996 (Uganda)

96. The Committee last examined this case at its May-June 2003 session. It requested the Government to speed up the process concerning the recognition of the Uganda Textile, Garments, Leather and Allied Workers' Union (UTGLAWU) at the Nytil Picfare company, later taken over by Southern Range Nyanza Ltd. and to keep it informed of any progress achieved. It further requested the Government to provide information on various legal proceedings filed by UTGLAWU against a number of companies to obtain recognition for collective bargaining purposes, and on the adoption of two draft bills (elaborated with ILO technical assistance) amending provisions of the Trade Unions Decree inconsistent with freedom of association principles (see 331st Report, para. 63).

97. In a communication dated 16 January 2004, the Government indicates that the negotiation between the management of Southern Range Nyanza Ltd. and the UTGLAWU has not yielded fruitful results and the matter is now being handled at a political level and in accordance with sections 17(2) and (3), respectively, of the Trade Unions Act 2000, Cap 223 (formerly section 19(2) and (3) of the Trade Unions Decree No. 20 of 1976). Section 17(2) provides that "(...) whenever an employer refuses to deal with a registered trade union as therein provided, the trade union shall report the facts to the Minister who shall call upon the employer to show cause in writing within twenty-eight days why the trade union is not being so recognized". And section 17(3) provides that "(...) where the Minister is not satisfied with the cause shown by the employer under subsection (2) or the Minister considers that the public interest so requires, the Minister may, by statutory order and after informing the parties concerned, declare that the registered trade union shall deal in respect of all matters relating to the relations of the employer with those of his or her employees who fall within the scope of membership of that trade union".

98. The Committee takes note of the Government's reply. The Committee notes however that the Government has not provided information on certain matters previously raised. The Committee deplores that, more than four years after the first examination of the case and after repeated demands, some issues are still pending. The Committee has recalled that it has always taken the view that nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 846). On the other hand, it has also taken the view that employers should recognize, for collective bargaining purposes, the representative organizations of the workers employed by them or organizations that are representative of workers in a particular industry. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 821, 823 and 824). In the situation at hand, the Committee recalls once again that the UTGLAWU is the most representative, if not the sole, organization of workers in the textile sector in Uganda. The Committee further observes that the Government appears to have taken certain conciliatory measures to obtain the concerned employers' recognition of the UTGLAWU for collective bargaining purposes but, regretfully, to no avail. The Committee deplores that the employer in question has still not recognized the UTGLAWU for the purposes of collective bargaining, which constitutes a flagrant violation of Article 4 of Convention No. 98, ratified by Uganda (see 316th Report, para. 667). It requests the Government to take the necessary measures to remedy this situation.

99. The Committee therefore takes note of the procedure provided by section 17(2) and (3) of the Trade Unions Act 2000 and requests the Government to indicate whether the employer has already presented its written statement to the Minister and to keep it informed of any development with regard to the recognition of UTGLAWU by Southern Range Nyanza Ltd.

100. The Committee recalls that the UTGLAWU had filed legal proceedings against a number of companies, namely Vitafoam Ltd., Leather Industries of Uganda, Kimkoa Industry Ltd., Tuf Foam (Uganda) Ltd. and Marine and Agro Export Processing Co. Ltd. in order to obtain recognition for collective bargaining purposes. The Committee urges the Government to provide without delay information on these legal proceedings.

101. Finally, the Committee urges the Government to provide, without delay, information on the adoption of the two draft bills amending provisions of the Trade Unions Decree.

Case No. 2229 (Pakistan)

102. The Committee examined this case at its March 2003 session (see 330th Report, paras. 918-958). On that occasion, it requested the Government to amend the Industrial Relations Ordinance of Pakistan (IRO) of 2002 so as:

- to ensure that workers of Bata Shoes company; Pakistan Security Printing Corporation; Pakistan Security Papers Ltd.; Pakistan Mint; establishments or institutions maintained for the treatment and care of sick, infirm, destitute and mentally unfit persons; institutions established for payment of employees' old-age pensions or workers' welfare; members of Watch and Ward; security and fire services staff of an oil refinery; or establishments engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products, or of a seaport and airport; railways; and administration of the State, enjoy the right to establish and join organizations of their own choosing;

- to ensure that workers' organizations are allowed to determine themselves whether they wish to join a federation and if that is the case to enjoy the right to establish and join the federation of their own choosing;

- to repeal section 19(1) of the IRO which imposes measures of administrative control over trade union assets;

- to lower the minimum requirement of ten trade unions, with at least one from each province, for establishment of a national federation;

- to repeal section 65(5) of the IRO which stipulates the disqualification of a trade union officer from holding any trade union office for the following term for committing an unfair labour practice and covers a wide range of conduct not necessarily making it inappropriate for persons found guilty to hold a position of trust;

- to enable the review of the factual bases on which that power was granted to unions if there is a change in the relative strength of unions competing for the power to represent workers exclusively for collective bargaining purposes;

- to allow workers to seek legal remedies against the acts of anti-union discrimination at any time and not only during an industrial dispute.

In addition, the Committee requested the Government to provide information on whether there is an additional waiting period relative to strike notice before initiating a strike action and, if so, to indicate the duration, and to engage in full consultations with the social partners on the possible amendment of the IRO in order to resolve the issue concerning the labour judiciary system to the satisfaction of all the parties concerned.

103. In a communication dated 29 April 2003, the Public Services International associated itself with the complainant organizations.

104. In a communication dated 11 August 2003, the Employees' Federation of Pakistan alleges that the management of the Employees' Old-Age Benefits Institution (EOBI) is threatening office bearers of the EOBI Employees' Federation of Pakistan by transferring them to far-flung places and creating hurdles to stop them pursuing a constitutional petition filed in the Sindh High Court. It indicates that the management has issued charge sheet letters to the members of the federation who are struggling for their constitutional and fundamental rights. The complainant organization further states that they have provided very convincing evidence of corruption, mismanagement and irregularities to the Ministry of Labour, as well as to other concerned authorities according to laid down procedure, but all in vain as no action was taken against the wrongdoers.

105. In a communication dated 6 October 2003, replying to allegations raised by the Employees' Federation of Pakistan, the Government indicates that EOBI has been excluded from the scope of IRO 2002 because it is an institution established for the welfare of workers and the experience proved that union activities were adversely affecting the working of EOBI, thereby increasing the administrative expenses of EOBI. The Government states that it considers it appropriate, in the interest of insured persons (workers) to exclude EOBI from the scope of IRO 2002 but assures that the legitimate rights and privileges of the workers of this institution will be given high priority by both the institution itself as well as the Ministry.

106. With regard to the allegation that the management of EOBI is threatening office bearers of EOBI Employees' Federation of Pakistan and creating hurdles to stop them from pursuing a constitutional petition filed in the Sindh High Court, the Government states that no office bearer of EOBI federation has been transferred from Karachi to another station in Pakistan. It further indicates that the EOBI Employees' Federation of Pakistan is not being deprived of the right to pursue its case filed in the Sindh High Court, Karachi.

107. With regard to the Committee's recommendations, the Government reiterates that the draft of IRO 2002 was prepared in consultation with all stakeholders, i.e. employers federation of Pakistan, leading labour federations, workers/employers bilateral council, provincial governments and ministries concerned of the federal government.

108. The Committee takes note of the information provided by the Government. The Committee recalls that the guarantee of the right of association should apply to all workers, with the only exception of police and armed forces (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206). Workers of EOBI, an institution established for payment of old-age pensions or workers' welfare, should enjoy the right to establish and join organizations of their own choosing. The Committee once again requests the Government to amend its legislation in that respect. With regard to the alleged acts of anti-union discrimination against trade union officers in the EOBI Employees' Federation of Pakistan, the Committee notes the contradictory information submitted by the Government and the federation. Recalling that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures and that this protection is particularly desirable for trade union officials (see Digest, op. cit., para. 696), the Committee asks the Government to conduct an independent investigation on the alleged situation in EOBI Employees' Federation of Pakistan.

109. The Committee regrets that no information was provided by the Government as concerns the Committee's previous recommendations. It regrets that the Government has not been able to amend the IRO and refers to its earlier recommendations in this case and to the comments of the Committee of Experts in this regard. The Committee therefore requests the Government to engage in full consultations with the social partners in order to amend the IRO so as to bring it in to conformity with Conventions Nos. 87 and 98. It further requests the Government to keep it informed in this respect.

Case No. 1965 (Panama)

110. At its March 2003 meeting, the Committee requested the Government to communicate the final judicial ruling on the dismissals of Darío Ulate, Porfirio Beitia and Julio Trejos (see 330th Report, para. 137). (According to the allegations, the Aribesa company, where these workers worked, went into liquidation and the dismissals took place in violation of the collective agreement.)

111. In its communication of 30 October 2003, the Government states that Porfirio Beitia did not appeal against the judicial ruling that declared the proceedings a nonsuit and ordered the file to be archived as the proceedings had come to an end. With regard to Darío Ulate and Julio Trejos, the domicile of the defendant that was indicated in their judicial complaints has not been found and neither have they requested that the defendant be summoned. The legal authorities have set a date for a hearing for both cases.

112. The Committee notes this information and requests the Government to send it a copy of the decisions handed down on the dismissal of Darío Ulate and Julio Trejos.

Case No. 2134 (Panama)

113. The issues pending in the present case refer mainly to the allegations of dismissal of trade union officials in the context of mass dismissals of public servants for partisan political reasons, which affected thousands of public servants since the new Government took over (September 1999) (see 330th Report, para. 974). The Committee made the following recommendations at its March 2003 meeting (see 330th Report, para. 977):

- the Committee requests the Government to examine the possibility of offering new posts to the union officers dismissed, on the understanding that it is for the complainant to demonstrate the status of the 60 persons concerned as union officers. The Committee requests the Government to keep it informed in this respect;

- the Committee requests the Government to send it a copy of the ruling given in the criminal trial of the union officer Alberto Ibarra for offences against honour.

114. In its communication of 30 October 2003, the Government states, with regard to the 60 persons mentioned by the complainant organization as being trade union officials, that in the documents submitted it has not noted that any of these are accredited as trade union officials. The complainant organization has also not provided proof to uphold this allegation, as requested by the Committee. With regard to the information requested on the ruling given in the criminal trial of Alberto Ibarra, the Government states that the hearing set for April 2003 was held but that the decision relating to this is pending.

115. The Committee notes this information. The Committee requests the Government to send it a copy of the ruling in the criminal trial of the union officer Alberto Ibarra for offences against honour, when this is handed down.

Case No. 1785 (Poland)

116. The Committee last examined this case at its November 2003 session, where it requested the Government to continue to keep it informed in respect of remaining claims pending before the Social Revindication Commission (the "Commission"), and of any further developments in respect of the Employees' Recreation Fund (see 332nd Report, para. 145).

117. In a communication of 8 January 2004, the Government indicates that there are no cases currently pending before the Commission. The Supreme Administrative Court (the "Court") is currently examining: complaints against three decisions of the Commission concerning the restitution of assets of NSZZ Solidarnosc, forfeited under martial law; and a complaint against a decision concerning restitution of assets of the Miners' Federation of Trade Unions, also forfeited under martial law. The judgements of the Court will determine whether these cases may be returned before the Commission (if the Court reverses or invalidates a given decision). As regards the case mentioned in the Government's previous communication, the Court has dismissed the extraordinary appeal filed by the Public Prosecutor General; the decision of the Commission thus came into force.

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

Case No. 2146 (Serbia and Montenegro)

119. The Committee last examined this case at its meeting in November 2002, when it expressed the firm hope that the Government would take the necessary steps to repeal the provisions of the law on the Yugoslav Chamber of Commerce and Industry, which give rise to compulsory membership or financing, and to ensure that employers may freely choose the organization they wish to represent their interests in the collective bargaining process without any interference by the legislatively constituted Chamber of Commerce (see 329th Report, paras. 152-155). The Government provided the following information in a communication dated 4 August 2003 and two communications dated 8 October 2003.

120. In its communication of 4 August 2003, the Government indicates that the Constitutional Charter and the law on the implementation of the Constitutional Charter of the state union of Serbia and Montenegro have vested in the member States the responsibility relating to the organization and association of employers. Accordingly, the National Assembly of the Republic of Serbia passed, on 27 May 2003, a law which repeals the law on the Yugoslav Chamber of Commerce and Industry. The law (published in the Official Journal of the Republic of Serbia No. 55 of 27 May 2003) came into force on 4 June 2003. The Government underlines that, since both member States have their own laws on economic chambers, the conclusions and recommendation of the Committee on the case under examination have been transmitted to the competent authorities so that they can be taken into account in the enactment of a new legislation or the amendment of the existing one.

121. Through its communications of 8 October 2003, the Government transmits observations made by the Minister of Labour and Employment of the Republic of Serbia and a copy of the law abrogating the law on the Yugoslav Chamber of Commerce and Industry. The Minister of Labour and Employment of the Republic of Serbia refers specifically to several provisions of the labour law adopted by the Parliament of Serbia and which became effective on 21 December 2001. Under section 5, membership of an association of employers is taken on a voluntary basis. In light of section 136, paragraph 1, collective agreements are concluded between an employer or the representative association of employers and the representative trade union. In accordance with section 139, an association of employers is considered to be representative when it is composed of at least 10 per cent of the employers of the branch or the activity to be covered by the collective agreement or 10 per cent of the total number of the employers in a territorial unit. The Minister of Labour and Employment underlines therefore that the Chamber of Commerce and Industry does not participate in collective bargaining as this matter pertains to voluntary associations of employers. The Minister of Labour and Employment adds that the Socio-Economic Council was established under an agreement concluded between three trade unions and the Union of Employers of Serbia. The latter is a voluntary representative association of employers; it therefore participates in collective bargaining. The Chamber of Commerce and Industry of Serbia is not a member of the Social-Economic Council. It attends its sessions "as a visiting party".

122. Regarding the law abrogating the law on the Yugoslav Chamber of Commerce and Industry, paragraph 1 of section 2 in the translated version provided by the Government reads as follows: "the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro shall overtake rights and obligations, financial resources and other property, as well as documentation and activities of the Yugoslav Chamber of Commerce and Industry". Section 4 specifies that the law will enter into force eight days as of its publication in the Official Gazette of the Republic of Serbia.

123. The Committee has duly taken note that, under the Constitutional Charter and the law on the implementation of the Constitutional Charter of the state union of Serbia and Montenegro, the exercise of the employers' right to organize is a matter falling within the competence of each member state of the union. The Committee notes also that its recommendations have been communicated to both the authorities of the Republic of Montenegro and the Republic of Serbia so that they can take them into account when they legislate on the matter. In this regard, the Committee notes that information on the legislation of the Republic of Montenegro has not been provided. It trusts therefore that the Government will soon supply all the necessary information in this respect, in particular on the Chamber of Commerce and Industry of Montenegro.

124. The Committee notes that, according to the Minister of Labour and Employment of the Republic of Serbia, in light of the provisions of the labour law, the Chamber of Commerce and Industry of Serbia does not participate in collective bargaining, as voluntary associations, such as the Union of Employers of Serbia, can conclude collective agreements. On the other hand, the Committee observes that paragraph 1, section 2, of the law abrogating the law on the Yugoslav Chamber of Commerce and Industry provides that the rights, obligations and activities of the dissolved Yugoslav Chamber of Commerce and Industry shall be taken over by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. The Committee recalls, in particular that, under section 6 of the law on the Yugoslav Chamber of Commerce and Industry, one of the activities of the Chamber was the participation in the conclusion and the implementation of collective agreements and that membership of the Chamber was compulsory.

125. To the extent that the provisions of the law abrogating the law on the Yugoslav Chamber of Commerce and Industry enable the Chamber of Commerce and Industry of Serbia to continue to have compulsory membership and to exercise powers which pertain to employers' organizations, the new law does not depart from the previous legislation but simply reproduces its provisions at the level of the Republic of Serbia. It thus appears to conflict with the provisions of the labour law referred to by the Minister of Labour and Employment. The Committee therefore requests the Government to take the necessary measures so that the law of the Republic of Serbia abrogating the law on the Yugoslav Chamber of Commerce and Industry be amended in order to ensure that employers may freely choose the organization they wish to represent their interests in the collective bargaining process without any interference by the legislatively constituted Chamber of Commerce. The Committee underlines that this request applies also to any similar legislative provisions of the Republic of Montenegro. Finally, the Committee requests the Government to indicate over the last two years how many collective agreements have been concluded and signed only by employers' organizations both in the Republic of Serbia and in the Republic of Montenegro.

Case No. 2255 (Sri Lanka)

126. During the previous examination of this case, which concerned certain provisions of the Guidelines for the Formation and Operation of Employees' Councils issued by the Board of Investment (BOI) which is the overseeing public authority in free trade zones (FTZs) (see 332nd Report paras. 915-956), the Committee formulated the following recommendations:

(a) Considering that certain provisions of the BOI Guidelines for the Formation and Operation of Employees' Councils issued by the Board of Investment, which is the overseeing public authority in free trade zones (FTZs), are contrary to Conventions Nos. 87, 98 and 135, ratified by Sri Lanka, and the principles of free and voluntary collective bargaining, the Committee requests the Government to take all necessary measures to:

(i) amend section 5(ii), (iii) and (v) of the BOI Guidelines so as to ensure that elections to employees' councils are carried out in the presence of independent persons and only where requested by both parties, and that the first elections are organized in close consultation with all parties concerned;

(ii) amend section 12 of the BOI Guidelines so as to ensure that the procedure for the conduct of meetings between the employer and elected representatives is determined by common agreement between the parties;

(iii) amend section 13 of the BOI Guidelines so as to ensure that the right of employees' councils to engage in collective bargaining is not subject to a prohibition of any action that might affect productivity;

(iv) amend section 8(v) of the BOI Guidelines so as to ensure that representative trade unions enjoy the same facilities in the undertaking as employees' councils without discrimination.

(b) The Committee requests the Government to keep it informed of the steps taken with regard to the amendments indicated above.

(c) Taking into account that only two collective agreements have been concluded in FTZs, the Committee requests the Government to take measures with a view to promoting collective bargaining in FTZ enterprises in conformity with Convention No. 98 and, considering that the 40 per cent rule is too restrictive, to amend this requirement taking into account the views of the parties. The Committee requests to be kept informed in this respect.

127. In its communication dated 12 January 2004, the Government indicates with regard to points (a) and (b) above, that the BOI has already prepared the necessary changes in line with the Committee's recommendations and steps will be taken to amend the Guidelines after having received feedback from the ILO. The Government attaches a copy of the proposed amendments. Thus, the draft amendment to section 5 provides that the first election for the creation of an employees' council shall be organized by the representatives of the BOI Industrial Relations Department, in close consultation with all parties concerned and carried out by a three-member electoral board constituted by the eligible employees of the enterprise. Subsequent elections to the councils shall be carried out by a three-member electoral board which shall be constituted by the council. A representative of the Commissioner General of Labour may be present at the election as an observer where both parties request him to be present. Where the electoral board of a council fails to carry out the election within one month of the date of expiry of the term of office of the council, the Industrial Relations Department of the BOI may, in close consultation with the council, facilitate the carrying out of the election by the electoral board of the council.

128. The Government also indicates that, according to the draft amendment to section 12.3, the procedure for the conduct of meetings between the employees' council and the employer shall be determined by mutual agreement between the parties. The draft amendment to section 13(ii) provides that the employer and the council shall work together to improve the efficiency and productivity of the enterprise and the well-being of the employees. The draft amendment to section 8(v) stipulates that the facilities provided to employees' councils under the BOI Guidelines cannot be extended to trade unions, as the Guidelines are applicable to employees' councils only; parallel to this, certain draft amendments to the Labour Standards and Employment Relations Manual envisage facilities for trade union representatives:

Section 9A: Facilities to trade union representatives

(i) Union committee meetings

The employer shall allow up to two (02) hours duty leave for a meeting of the executive committee of a representative enterprise-union and the branch union committee of a representative union operating from outside the enterprise/export processing zone, and provide the necessary premises and facilities for the conduct of the affairs of the union/branch union.

(ii) Right of access of trade union representatives to BOI enterprises/EPZs

A duly nominated representative of a trade union who is not employed in a BOI enterprise but whose trade union has members employed therein, whether within or outside the export processing zone, shall be granted access to the enterprise/export processing zone, provided the union -

(a) is a representative union,

(b) seeks access to the enterprise for purposes of representation functions,

(c) has obtained the consent of the employer for such access, and

(d) having satisfied the above requirements, obtained an entry permit from BOI authorities for the entry sought, in the case of an enterprise located within an export-processing zone.

(iii) "Representative union" for the purposes of this section means a union which represents not less than forty (40) per centum of the employees in the enterprise on whose behalf it seeks to represent.

129. Regarding point (c) of the Committee's recommendations, the Government notes that the Department of Labour is taking measures to promote collective bargaining in the FTZ enterprises with ILO assistance. With regard to the 40 per cent rule, the Government states that action is being taken to take up the matter at the National Labour Advisory Council (NLAC). Finally, the Government states that action is being taken to effect the necessary amendments to legislation. All the legislative aspects would be taken up for discussion at the NLAC scheduled to meet in January 2004.

130. The Committee notes with interest the swift steps taken by the Government pursuant to its recommendations, so as to modify the provisions of the BOI Guidelines concerning the organization of elections to employees' councils, the procedure for the conduct of meetings between the employer and elected representatives, and the conduct of negotiations between the employees' council and the employer. The Committee notes that these draft amendments will be taken up for discussion at the National Labour Advisory Council in January 2004, along with the issue of the 40 per cent threshold for the recognition of trade union representativeness, which had been considered as too restrictive by the Committee. The Committee expresses the hope that the above draft amendments will be approved and adopted as soon as possible and that appropriate steps will be taken to amend the 40 per cent rule, taking into account the views of the parties. The Committee requests to be kept informed of progress made in this respect.

131. The Committee recalls that during the previous examination of this case, it had requested the Government to ensure that representative trade unions enjoy the same facilities in the undertaking as employees' councils without discrimination. It notes from the Government's response that a draft amendment to the Labour Standards and Employment Relations Manual grants facilities to trade union representatives including the right of access to EPZ/FTZ enterprises. Thus, the proposed section 9A of the Manual provides that access to EPZ/FTZ enterprises shall be granted to a union which represents at least 40 per cent of the employees in the enterprise; seeks access to the enterprise for purposes of exercising representation functions; has obtained the consent of the employer; and, having satisfied the above requirements, has obtained an entry permit from the BOI. The Committee considers that these requirements do not allow access to an EPZ/FTZ enterprise of trade unions which do not have representative status in the particular enterprise, in order to inform the workers of the advantages of trade unionism. The Committee recalls that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionization. In a case concerning the right of trade union leaders to enter an industrial free trade zone, the Committee drew the Government's attention to the principle that workers' representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to workplaces (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 954 and 957). The Committee therefore requests the Government to ensure that trade union representatives are granted access to the workplace even when their organization does not have representative status in a particular EPZ/FTZ enterprise, and that permission for such access may not be unreasonably withheld, with due respect to the need to maintain the smooth functioning of the enterprise concerned. The Committee requests to be kept informed in this respect.

Case No. 2129 (Chad)

132. The Committee examined the substance of this case at its May-June 2002 meeting (see 328th Report, paras. 596-605). The Committee recalls that the case concerns the arrest, detention and interrogation, without warrant, on 30 May 2001, of the chairperson and the secretary-general of the Union of Trade Unions of Chad (UST), Mr. Boukinebe Garka and Mr. Djibrine Assali Hamdallah, on the grounds that the UST had been involved with the opposition political parties to try to arrange an information meeting following the contested elections of 20 May 2001.

133. In a communication dated 8 January 2004, the Government states that the secretary-general of the UST was questioned by police concerning a document signed jointly with six political parties inciting the population to civil disobedience. It claims that it considered it reasonable, in the interests of keeping the peace, to arrest the abovementioned union members in order to avoid any unfortunate developments in the situation. The Government stresses that, in accordance with legal and statutory provisions, trade unions in Chad are entitled to express their positions on economic and social policy in the country, but not to promote interests which are essentially political to the detriment of their trade union activities.

134. The Committee takes note of this information. However, the Committee also notes that its recommendation, whereby it requested the Government to give appropriate instructions to the competent authorities so that no further arrests of this type take place in the future, has not been implemented by the Government. Recalling again that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular, the Committee requests the Government to keep it informed of the specific measures taken to implement its recommendations.

Case No. 1581 (Thailand)

135. The Committee last examined this case at its May-June 2003 session (see 331st Report, paras. 67-69). This case relates to the conformity of the State Enterprise Labour Relations Act (SELRA) with the principles of freedom of association. The examination of the Committee relates also to the amendment of the Labour Relations Act (LRA) which applies to the private sector. During its last examination, the Committee recalled that, in relation to the SELRA, it had expressed concern over the maintenance by the Act of a situation of trade union monopoly in state enterprises, broad powers granted to the Registrar to oversee certain internal affairs of the trade union, a general prohibition of strike and severe penalties for strike action, even when peaceful. The Committee thus requested the Government to keep it informed of the measures taken to give effect to its recommendations. Finally, the Committee requested the Government to send a copy of the latest version of the amendment to the LRA so that it may assess its contents in the light of the principles of freedom of association.

136. In a communication of 11 November 2003, the Government provides the following information. Regarding the inconsistencies between the SELRA and the principles of freedom of association, the Ministry of Labour, through the intermediary of its Department of Labour Protection and Welfare (DLPW), is reviewing the matter. Resources have been allocated to conduct a research and a study on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). This work will focus on the appropriate way to enhance the right to organize workers in all sectors. It is scheduled for one year as of August 2003. At the same time, the Government underlines that the Parliament adopted the SELRA by consensus and that the contents of the Act were approved by the National Advisory Council for Labour and Development which includes representatives from the Government, employers and workers. With respect to the LRA, the text is still under consideration by the Council of State. The Committee will be kept informed of any progress made in this respect as soon as possible.

137. The Committee takes note of the information submitted by the Government. It recalls that, since November 1991 (see Report 279th, paras. 441-482), it has been examining at length the conformity of the SELRA with the principles of freedom of association. As a result, an earlier version of the Act (the State Enterprise Labour Relations Act, B.E. 2535) had been repealed and a new version adopted on 23 March 2000 (the State Enterprise Labour Relations Act, B.E. 2543). Under the current SELRA, employees of state enterprises have the right to form and join trade unions and federations, and bargain collectively. Nonetheless, as the Committee recalled it during its last examination, a number of inconsistencies with the principles of freedom of association still need to be resolved. These inconsistencies raise fundamental issues in terms of freedom of association. The Committee takes note of the study launched by the Government on Convention Nos. 87 and 98 with a view to enhance the right to organize workers of all sectors. While it welcomes the principle of this initiative, the Committee is concerned about the time it will take and the additional time that will be required to amend the SELRA on the points highlighted by the Committee in 2002 (see 327th Report, paras. 107-112). The Committee trusts that the Government will take concrete steps to accelerate the study so that amendments to the SELRA will be adopted in the shortest possible time. The Committee expresses the firm hope that all the issues it has raised will be resolved in a satisfactory manner, including the issue concerning the impact of the conversion from state to private enterprise on the existence of a state enterprise union examined in case No. 2181. The Committee requests the Government to keep it informed of the progress made in this respect and to provide it, without delay, with the text of the amendment to the LRA.

Case No. 2125 (Thailand)

138. The Committee last examined this case at its June 2003 meeting (see 331st Report, paras. 70-72). This case relates to the dismissals of 21 employees of the ITV-Shin Corporation, which the Committee concluded occurred on account of their membership of the ITV labour union (see 327th Report, para. 778). During its last examination, the Committee noted that the Central Labour Court confirmed the unanimous decision of the tripartite Labour Relations Committee that the dismissal of the 21 employees, members and officials of the ITV labour union, was illegal and that they should all be reinstated. An appeal was lodged before the Supreme Court of Thailand by the ITV-Shin Corporation. In its conclusions, the Committee underlined that it had requested the Government not only to keep it informed of the outcome of the national judicial procedure, but also to take active steps to ensure the 21 employees' reinstatement, in particular to avoid that recourse to national jurisdictions by the ITV prolongs unduly the effects of the anti-union discrimination it exerted on these employees.

139. In a communication 18 August 2003, the complainant submitted additional information in the form of a letter from the president of the International Federation of Journalists (IFJ). The IFJ voices its deep concern over the case and in particular over the Government's inaction despite the rulings of the Central Labour Court and the tripartite Labour Relations Committee, and the conclusions of the Committee. In a communication of 11 November 2003, the Government indicates that the case is still pending before the Supreme Court and that it will inform the Committee of the outcome of the national judicial procedure as soon as possible. Regarding the steps to be taken to ensure the reinstatement of the 21 employees, the Government adds that, if the Supreme Court confirms the judgement of the Central Labour Court, the ITV-Shin Corporation must comply with the order of the tripartite Labour Relations Committee to reinstate the 21 ITV labour union members and to pay them compensation, equivalent to the amount of the wages they would have received between the date of their dismissals and the date of their reinstatement. In case of failure on the part of the ITV to execute the order, the company will be charged with violation of sections 121-123 of the Labour Relations Act and a penalty will be decided.

140. The Committee regrets that for the second time it is obliged to note that the Government has not taken any steps at all to ensure that the 21 employees are reinstated, considering that this is a matter to be dealt with by the national courts. The Committee must recall that the 21 employees were dismissed more than three years ago and that is has been established since then that these dismissals were acts of anti-union discrimination on the part of the employer, the ITV-Shin Corporation. One year ago, the Committee specifically requested the Government to take steps to ensure the reinstatement of the 21 dismissed members and officials of the ITV labour union in their jobs, with the payment of back wages. This request was made in light of the fact that the Government is responsible for preventing all acts of anti-union discrimination.

141. By not taking any steps to ensure the reinstatement of the 21 employees, the Government allows acts of anti-union discrimination to have prolonged, if not irreversible, effects on the workers concerned. This inaction is thus in clear infringement of the principles of freedom of association and renders the prohibition of any act of anti-union discrimination, set out in section 121 of the Labour Relations Act, 1975, ineffective. The Committee must therefore firmly requests the Government to put an end to such a situation and to take, without delay, active steps to ensure the reinstatement of the 21 employees dismissed on account of their trade union activities. The Committee requests the Government to keep it informed of developments in this respect.

Case No. 2181 (Thailand)

142. The Committee last examined this case at its May-June 2003 meeting (see 331st Report, paras. 73-77). The case relates to the automatic dissolution of the Bangchak Petroleum Public Co. Ltd. Employees' Union (BCPEU) as a result of a purported change of status of a state-owned oil company, the Bangchak Petroleum Public Co. Ltd. In the course of it first examination of the case (see 329th Report, paras. 740-764), the Committee found that the administrative dissolution of the BCPEU and the automatic revocation of its registration and legal personality infringed a number of principles of freedom of association, and the Committee requested the restoration of the union's legal personality and registration. Noting the registration of a new union led by another president, the Committee also requested from both the Government and the complainant information on the situation of trade union and collective bargaining rights in the company. Finally, in view of the serious consequences that the existing legislation might bring about for the existence of workers' organizations in such cases of conversion from state to private enterprise, the Committee requested the Government to take appropriate measures so that the situation would not arise again in the future and trade union successors' rights would be safeguarded. When it last examined the case, the Committee reiterated its requests.

143. In a communication dated 15 July 2003, the complainant organization submitted further information in the form of a letter from Public Service International (PSI). PSI voiced its concern over the Government's apparent choice to disregard the recommendations of the Committee. Thus, PSI has been informed by its affiliates in Thailand that there has been no progress towards the reversal of the revocation of BCPEU's legal personality and registration. The State Enterprise Workers Relations Confederation (SERC) made a number of representations to the Government. The latter maintained its position which rests on the distinction between the State Enterprise Labour Relations Act of 2000 (SELRA), governing state-enterprise workers, and the Labour Relations Act of 1975 (LRA) applicable to private sector workers. Thus, according to PSI, all change in ownership, under which a state enterprise is transferred to the private sector, will result in the revocation of the legal personality and registration of its union, since there is no clause governing the transition from one status to another. Given the Government's commitment to privatize virtually all state enterprises, in the absence of any amendment to the legislation, the Government will proceed with such revocations upon an enterprise's privatization. PSI has attached a number of documents to its communication, which had already been brought to the attention of the Committee.

144. In a communication dated 11 November 2003, the Government makes the following points. The Government recalls that the SELRA and the LRA are the two laws governing labour relations. The Bangchak Petroleum Public Co. Ltd. is not considered any longer to be a state enterprise within the framework of the SELRA due to a change in its shareholder; it now falls within the scope of the LRA. The modification of the company's status resulted in the dissolution of the BCPEU. The Government underlines however that this modification has not affected the right to organize and the right to bargain collectively of the workers concerned, which are both guaranteed under the LRA. The Government recalls in this respect that a union, the Bangchak Labour Union, has been established in accordance with the LRA and is composed of 61 members. No labour dispute has arisen since the modification of the company's status. The Government points out that it is not currently possible to transfer the rights which arose under the SELRA. Further, the governmental authorities are not empowered to allow an automatic transfer of the rights and status of a union originally established under the SELRA and which henceforth falls under the scope of the LRA. The Government submits in this respect that the SELRA allows the establishment of only one labour union composed of no less than 25 per cent of the employees of the state enterprise, while the LRA allows the foundation of a union with a minimum of ten employees working for the same employer or in the same description of work. The Government takes the view that a transfer of rights may cause inequity in respect of promoters and members required for the establishment of the union. Nonetheless, the Government indicates that the Department of Labour Protection and Welfare (DLPW) is currently considering the legal problems and obstacles raised by the impact that a state enterprise's conversion has on the rights and status of its union, in order to seek feasible legislative solutions.

145. The Committee takes note of the Government's recognition of the legal difficulties engendered, under the current legislation, by the conversion from state to private enterprise in respect of the existence of a state enterprise union. The Committee also notes that the matter is under consideration by the Department of Labour Protection and Welfare (DLPW) in order to seek legislative solutions. The Committee welcomes this development and requests to be kept informed of the progress made in this respect.

146. Turning to the particular case of the BCPEU, the Committee would like to recall that its administrative dissolution and the automatic revocation of its registration and legal personality constituted serious infringements of the principles of freedom of association. Since they occurred more than two years ago, these infringements should now be remedied without delay. In this respect, the Committee has some difficulty in understanding the Government's general contention that a transfer of the BCPEU's rights under the LRA would create inequity in respect of the number of promoters and members required for the establishment of a union; indeed, it seems that the conditions for the establishment of a union are more strict under the SELRA than under the LRA. As the Committee has already pointed out, the only question which arises is that of preferential bargaining rights. This question has not yet been clarified neither by the Government nor by the complainant. In these circumstances, the Committee firmly requests the Government once again to restore the legal personality and registration of BCPEU and trusts that the Department of Labour Protection and Welfare (DLPW) will promptly examine this particular question alongside the more general legislative issue. The Committee requests the Government to keep it informed of developments in this respect.

Case No. 2014 (Uruguay)

147. The Committee examined this case relating to anti-union measures and sanctions against trade union officials and workers at the CONAPROLE enterprise at its March 2002 meeting (see 327th Report, paras. 118-120). On that occasion, the Committee requested the Government to keep it informed of the outcome of the inquiry carried out by the Labour Inspectorate into the alleged restrictions on the access of trade union officials to the workplace.

148. In a communication dated 27 August 2003, the Association of Workers and Employees of CONAPROLE (AOEC) states that the situation of the trade union leader Ramón Vitalis remains unchanged and that the commission that is to re-examine his case has still not been convened (the trade union leader had been dismissed and the Government informed the Committee that his conduct at work would be analysed by a commission made up of representatives from the National Labour Directorate and the Trade Union Confederation PIT-CNT).

149. In its communication dated 30 December 2003, the Government states that the issue of Ramón Vitalis was definitively resolved both at the national level, and with regard to its examination by the Committee on Freedom of Association it had been duly and repeatedly shown that his separation from the enterprise was for work related reasons which in no way constituted a case of trade union repression. This has been the conclusion not only of the administrative procedure carried out before the General Labour Inspectorate, but also of the pronouncements of the labour courts, in both first and second instance. The two rulings agreed that the worker had committed what both doctrine and national case law deem "flagrant bad conduct" and as such he is not entitled to claim abusive dismissal, while any notion of a violation of freedom of association by the enterprise is fully ruled out. The Government adds that without prejudice to the conflict that gave rise to this case (which goes back to 1997), it is clear that labour relations at the enterprise have gone back to normal, as evidenced by the note sent to the ILO by the Association of Workers and Employees of CONAPROLE dated 27 August 2003, so that far from indicating new grounds for conflict it is persisting with the case of Ramón Vitalis, whose work situation has been clearly and definitively resolved from both the administrative and jurisdictional points of view. Lastly, the Government states that relations are fluid between the enterprise and the trade union and mentions the various agreements reached between 1999 and 2003 (the most recent of them in September 2003 concerning wages).

150. The Committee notes this information and in particular that the judicial authority concluded in respect of the dismissal of the trade union leader Mr. Vitalis, that "no causal link was found between the dismissal and the trade union role of the person in question (Mr. Vitalis) ... whereas there is ample proof of the bad conduct cited by the complainant (CONAPROLE enterprise)". Nevertheless, the Committee regrets to observe that the Government has provided no information about the result of the inquiry carried out by the Labour Inspectorate into the alleged restrictions on access of trade union officials to the workplace. Whatever the case may be, the Committee trusts that in the framework of the normalization of labour relations between the enterprise and the AOEC trade union announced by the Government, this matter has been resolved and requests the Government to ensure that this is the case.

Case No. 1952 (Venezuela)

151. The Committee last examined this case at its June 2003 meeting when it made the following requests (see 331st Report, paras. 78-97):

Dismissals of unionized firefighters

- The Committee requests the Government to inform it of the decision of the judicial authority on the question of the reinstatement of trade unionists Rubén Gutiérrez and Juan Bautista Medina and payment of unpaid wages.

Anti-union campaign to prevent the right of free association of firefighters in the Eastern Joint Fire Brigade, the Guacara, San Joaquín and Mariara Fire Brigade Foundation, and the Valencia Fire Brigade Autonomous Municipal Institute

- The Committee requests the Government to have the labour inspectorate undertake an investigation into obstacles to free association in the bodies mentioned by the complainant and to inform it thereof.

Harassment and vilification campaign against the Yaracuy Fire Brigade Foundation and the promulgation of the law of 22 December 2001 which excludes firefighters from the rights of free association and collective bargaining

- The Committee requests the Government to send it the text of the law in question and to have the labour inspectorate undertake an investigation into the alleged harassment and vilification campaign.

New allegations

- As regards the allegations of SINPROBOM (8 May 2002) and ASINBOMPROVEN (September 2002), the Committee notes that the Government confirms the allegations and attributes anti-union conduct to different local authorities, while the local authorities deny that they have an anti-union attitude and offer a different version of the facts. The Committee notes the Government's wish to continue with investigations and requests it to have the labour administrative authority (labour inspectorate) carry out an exhaustive investigation and inform it thereof. The Committee further requests that the investigation should also cover the allegations of ASINBOMPROVEN of 21 February 2003 (according to this organization, the Caracas Metropolitan District Fire Brigade does not apply the rights contained in the collective agreement signed before the merger of the fire brigades in the case of 220 firefighters. Administrative proceedings were commenced against the president of the trade union for having invited the media to an interview in the trade union premises. In addition, for informing members of the date of an assembly, disciplinary action was taken against Martín Rodríguez, the trade union's secretary for international affairs and relations). The Committee requests the Government to take the necessary measures to ensure full respect for trade union rights in the fire-fighting sector.

152. In its communication of 27 August 2003, the National Trade Union Association of Professional Firefighters, Auxiliaries and Related Workers of Venezuela (ASINBOMPROVEN) refers to the allegations already made and states that the Chairperson of the National Executive Committee of ASINBOMPROVEN, Tomás Arencibia, was dismissed following irregular disciplinary proceedings conducted by the Human Resources Director of the Metropolitan District of Caracas and the Commander-in-Chief of the Fire Brigade. The complainant adds that judicial proceedings were initiated regarding this dismissal and other violations of trade union rights, but these were declared unfounded.

153. As regards the alleged discrimination against transferred workers who had previously worked at the Eastern Joint Fire Brigade (by revoking the labour rights obtained through collective bargaining), in its communication of 30 October 2003, the Government states that as regards the acquired rights of the fire-fighting officers, the Caracas metropolitan mayor's office endeavoured to apply the collective agreement concluded between the former Eastern Joint Fire Brigade and its firefighters provided the provisions did not contravene legislation. This has not affected the position of transferred officers, given that, coincidentally, the benefits established in the aforementioned agreement are the same as those provided for in the arrangements enjoyed by Caracas Metropolitan District staff. Furthermore, the Government states that on no occasion did the Caracas metropolitan mayor's office prevent officers at the Caracas Metropolitan District Fire Brigade from establishing trade unions.

154. Regarding the allegation that the authorities of the Caracas Metropolitan District Fire Brigade raided the office occupied by the trade union and illegally vacated the premises, without the presence of an official from the Attorney-General's Office, and wrongfully appropriated property belonging to the trade union, the Government states that according to information provided by the Commander-in-Chief of the Caracas Metropolitan District Fire Brigade, the ownership of the facilities that have been made available to the Fire Brigade, which are located in the Municipalities of Baruta, Chacao and Sucre, has not been transferred over to the Metropolitan District of Caracas and, in principle, the use of these facilities was made possible through documents handing them over on a right of use or loan for use basis. As regards the fire station at El Cafetal, where the premises occupied by the aforementioned trade union are located, to date, this station has not been officially handed over to the Metropolitan District of Caracas, given that it consists of two buildings, one of which is in the final stages of construction. The Government adds that neither Venezuelan legislation nor ILO decisions and resolutions have qualified the failure of employers to provide premises for trade unions as a violation of freedom of association.

155. With reference to the launch of an administrative inquiry into the conduct of the president of the complainant organization, Second Sergeant (Sargento Segundo) Tomás Arencibia, the Government states that on 28 October 2002, the Commander-in-Chief of Caracas Metropolitan District Fire Brigade requested the Human Resources Director of the metropolitan mayor's office of Caracas to open a disciplinary inquiry in accordance with the provisions of section 89, paragraph 1, of the Civil Service Statute Act, given that unsuccessful attempts had been made to: (1) try to reconcile the officer in question to his rights and duties within the organization; and (2) offer guidance on the regulations applicable to him and explain the action taken in view of his conduct by his direct superiors, who ordered him to perform his professional duties. Therefore, through the document dated 20 November 2002, the Human Resources Director ordered the launch of a disciplinary inquiry into the conduct of the officer in question so as to verify the alleged misconduct involving dereliction of duty, failure to obey orders and instructions given by his direct supervisor, lack of respect and lack of probity towards his superiors. Through Memorandum No. D.C.J. 0009 of 22 January 2003, the Office of the Legal Counsel of the Caracas metropolitan mayor's office, came to a decision regarding this case and considered that "Mr. Tomás Arencibia Ramírez disobeyed orders issued by his hierarchical superiors within the scope of their responsibilities, was guilty of insubordination on repeated occasions and failed to turn up for work", and that "the disciplinary measures taken by the Human Resources Office were fair". The Government considers that the dismissal of Mr. Tomás Arencibia from his position as Second Sergeant of the Caracas Metropolitan District Fire Brigade does not constitute a violation of the right to freedom of association or its guarantees, such as trade union immunity, given that his dismissal resulted from the outcome of disciplinary proceedings, conducted with due process, which confirmed that the officer in question was guilty of serious misconduct when performing his duties.

156. On the other hand, as regards the acts of aggression against members of the National Executive Committee, the Government states that according to the facts, events that were reported as an assault against Second Sergeant Tomás Arencibia committed by some officials, following the direct orders issued by the Commander-in-Chief of the Fire Brigade, are incorrect, given that it has been established in this case that there was a physical confrontation between the official in question and Major Eleazar Corro, who acted in legitimate defence in response to the acts of aggression committed by Second Sergeant Tomás Arencibia, who had provoked the physical confrontation. In any case, the Government states that there are no forensic reports to support the alleged serious injuries as reported by ASINBOMPROVEN suffered by Second Sergeant Tomás Arencibia, and there is even less evidence that these injuries were the result of an order given by the Commander-in-Chief of the Fire Brigade.

157. As regards the transfer of National Executive Committee members and the alleged suspension of trade union leave, granted through the collective agreement and regulations under the Administrative Service Act, the Government states that in the specific case of the Caracas Metropolitan District Fire Brigade, which serves approximately 5 million inhabitants, it would be irresponsible of high-ranking and commanding officers not to anticipate how many staff members they will have at any given time, which staff members have been granted leave, and for how long. It would be even more irresponsible of the firefighters and workers of this brigade to fail to turn up for work without notice or prior explanations. Unfortunately, ASINBOMPROVEN representatives misunderstood the nature of trade union leave by trying to take leave without following the necessary procedures beforehand and without any form of justification, using the excuse that they had the right to take leave to perform trade union activities. To date, the ASINBOMPROVEN representation has not obtained an administrative or judicial decision declaring the legitimacy of any leave required to fulfil trade union duties. On the contrary, with regard to Second Sergeant Tomás Arencibia, the records on this case show that he received warnings for absence from the workplace and insubordinate conduct.

158. The Government adds that as a result of integrating staff from the Eastern Joint Fire Brigade into the Caracas Metropolitan District Fire Brigade, it was necessary to make organizational changes. The Act on Fire Brigades and Civilian Crisis Management Entities, section 14, provides for the extension of activities by stating that: "fire brigades and civilian crisis management entities can extend their activities to any area within the region provided that their collaboration is requested by the commanding officer responsible for the area in question, and that the necessary coordination has been carried out between the competent authorities of the brigades involved". Thus, according to the above, transfers are legitimate and within the authority of commanding officers, provided that such transfers are made to meet a request for collaboration made by the commanding officer responsible for the area in question. Therefore, the Government indicates that commanding officers can make transfers, if they so wish, and highlights that the transfer of officers that occurred at the Caracas Metropolitan District Fire Brigade did not affect in any way the rights and legitimate, personal and direct interests of the officer in question, given that this modification did not lead to any deterioration in working conditions.

159. Lastly, with reference to the alleged anti-union conduct by the Mayor of Caracas and the Commander-in-Chief of the Caracas Metropolitan District Fire Brigade, the Government states that the authorities of the aforementioned Fire Brigade and the Mayor of Caracas expressed their opposition to the presence of a firefighters' trade union at this fire brigade in order to prevent certain groups and individuals from disrupting the establishment through their lack of discipline and failure to respect legislation and regulations. The position adopted by these authorities is not one of failing to recognize or rejecting collective bodies established to protect and demand the labour rights of workers and firefighters, rather one of maintaining the institutional system that must prevail within organizations, such as fire brigades responsible for the safety of citizens.

160. The Committee notes this information and points out the contradiction between the version of events provided by the complainant and that given by the Government concerning the allegations. The Committee notes that the Government highlights that there were no acts of anti-union discrimination by the authorities of the Caracas metropolitan mayor's office and the fire brigade of this district. However, the Committee observes that when examining this case at its June 2003 meeting, the Government confirmed some allegations of anti-union discrimination and attributed acts of anti-union conduct to various local authorities (it also stated that it would conduct investigations, the results of which have not been sent). In any case, the Committee recalls that firefighters (even if they are considered civil servants) must enjoy the guarantees provided for in Conventions Nos. 87 and 98, which have been ratified by Venezuela. The Committee requests the Government to take measures to this end and, more generally, to conduct negotiations with the complainants to find a solution to the problems posed in various localities and to keep it informed in this respect.

Case No. 2154 (Venezuela)

161. At its June 2003 meeting, the Committee formulated the following recommendations on the issues that remained outstanding (see 331st Report, para. 748):

- With respect to the mass dismissals of workers in the State of Trujillo, the Committee requests the Government to ensure that all workers who were dismissed in violation of the collective agreement be reinstated in their posts and if that is not possible that they receive adequate entitlements. The Committee requests the Government to keep it informed in this respect.

- The Committee again urges the Government to indicate whether it has executed the six judicial rulings on labour stability mentioned in the criminal complaint submitted to the Public Prosecutor's Office on 17 July 2001 against the authorities of the Trujillo Health Foundation (FUNDASALUD) and the latter's decision in the matter and to inform it of the result of the court proceedings in respect of the order of the Inspectorate of Labour to reinstate the workers of the former Department of State Public Works (now the Department of Infrastructure).

162. In its communication dated 30 October 2003, the Government sent official documentation showing that the Constitutional Division of the Supreme Court ordered that the judgements of first instance ordering the reinstatement of six workers should be vacated due to violation of due process; the social benefits of these workers had previously been paid. The Government stresses that the Executive Power of the State of Trujillo, by reason of the restructuring (new administrative organization) that resulted in the mass dismissals, settled all its labour obligations, and the workers who fulfilled the necessary requirements were even awarded pension benefits.

163. The Committee notes this information.

Case No. 2160 (Venezuela)

164. At its March 2003 meeting, the Committee formulated the following recommendations on the issues that were still pending (see 330th Report, para. 179):

The Committee requests the Government to supply a copy of any court ruling regarding the refusal to register the complainant (Trade Union of Revolutionary Workers of the New Millennium). At the same time, the Committee deplores the fact that the Government has not supplied any information in connection with its recommendation concerning the reinstatement of all the workers who were dismissed for participating in the establishment of the union in question, and urges the Government to take measures without delay to ensure that these workers are reinstated in their posts. The Committee requests the Government to keep it informed in this regard.

165. In its communication of 4 September 2003, the Government states that the Ministry of Labour will comply with the ruling handed down by the judicial authority relating to the administrative decision refusing to register the trade union in question. Furthermore, the Government attaches the financial agreements concluded between six workers (Jonatán Pacheco, Iván Orlando Suárez, Jaime Gómez, Daniel León, Alcides A. Hernández and Gerardo Montenegro) and the INLACA corporation in which they freely recognize that those agreements should be considered as res judicata and renounce any proceedings.

166. The Committee notes this information. It requests the Government to send it the ruling handed down concerning the refusal to register the complainant trade union. The Committee notes the agreements signed by six dismissed workers and requests the complainant trade union to indicate whether other workers remain dismissed for having participated in the establishment of the trade union (the complainant organization had also referred in its communication of 26 December 2001 to Jorge Amaro, Alfredo Aular, Guido Sivira, Otiel Montero and Orlando Acuña).

Case No. 2161 (Venezuela)

167. At its November 2003 meeting, the Committee requested the Government to inform it of all measures adopted to reinstate trade union officials José Gregorio González, Delvis Beomont and Sonia Chacón, who had been dismissed from the "Sofía Imbert" Museum of Contemporary Art in Caracas, as well as about a draft law to amend labour legislation, in particular with regard to protection against anti-union discrimination, which had been submitted to the Congress of the Republic (see 332nd Report, paras. 182-184).

168. In a communication dated 13 January 2004, the Government states with reference to the situation of the former officials José Gregorio González, Delvis Beomont and Sonia Chacón, that they left their posts in 2002. These former officials voluntarily stopped working for the MACCSI, and consequently abandoned the proceedings initiated before the Labour Inspectorate where they were requesting reinstatement and the payment of outstanding wages, which is why the Labour Inspectorate did not order them. The Government also states that these former workers were paid all the benefits and other obligations to which they were entitled under their employment contracts, in keeping with the Republic's Constitution and legislation.

169. With regard to the draft law to amend labour legislation, and in particular with regard to protection against anti-union discrimination, the Government states that it put the draft law to reform the Labour Organization Act before the National Assembly, and it was approved in first discussion on 17 June 2003, while the second discussion process involving the consultation and participation of all the social partners, is under way. According to the Government, this draft law is underpinned by the recommendations formulated by the ILO supervisory bodies relating to the need to adapt national provisions to the obligations deriving from the ratification and application of Conventions Nos. 87 and 98. The draft law incorporates means of protection for workers against acts of anti-union discrimination and imposes strict sanctions on anyone violating these rights; more rapid, less rigid and more effective justice is guaranteed. The draft also restores the system of compensation for unjustified dismissal, protecting workers discriminated by the last reform of the Labour Organization Act of 1997. Mass dismissals are regulated more precisely, as are other issues.

170. The Committee notes this information. The Committee requests the Government to send it a copy of the Act as soon as it is adopted.

Cases Nos. 1937 and 2027 (Zimbabwe)

171. The Committee last examined these cases at its November 2003 session. It requested 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 and 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. The Committee further expressed its deep concern with regard to the Government's refusal to conduct an independent investigation with the aim of identifying and punishing the guilty parties of the assault on the trade union leader, Mr. Morgan Tsavangirai. Finally, it requested the Government to take the necessary measures to conduct an inquiry in order to identify the perpetrators of the arson of the ZCTU offices and to keep it informed of the measures taken in this regard as well as the results of the investigation.

172. In a communication dated 14 January 2004, the Government states that the legislative amendments brought by the Labour Relations Amendment Act No. 17/2002 are sufficient to address the concerns of the Committee. Concerning the assault on the trade union leader, Mr. Morgan Tsavangirai, the Government states that, instituting a judiciary inquiry over the assault of the former General Secretary of ZCTU is uncalled for as much as it would set a wrong precedent. It further states that it considers that the courts have competently handled the matter and that the onus is upon the complainant to seek redress through the available national procedures, if ever he was not satisfied by the court's decision. The Government indicates that Mr. Tsavangirai could file a civil action should he be able to identify the perpetrator. Finally, concerning the arson of the ZCTU offices, the police are still investigating the matter and have since opened a docket. However, so far, nobody has been identified as the perpetrator.

173. The Committee takes note of the Government's reply.

174. The Committee notes the Government's recent ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and trusts that it will make every effort to ensure that its legislation is brought into full conformity with the provisions of the Convention. The Committee therefore urges 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 and to guarantee that no imprisonment sanctions are taken in case of peaceful strikes and that the sanctions are proportionate to the seriousness of any infringements. It draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.

175. Concerning the assault on the trade union leader, Mr. Morgan Tsavangirai, the Committee is deeply concerned about the lack of cooperation of the Government in this matter and deplores its persistent refusal to conduct an independent investigation. It recalls once again that the absence of judgements against the guilty parties creates a situation of impunity, which reinforces the climate of violence (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, op. cit., para. 55). Such climate aimed at trade union leaders and their families is not favourable to the free exercise of trade union rights and all States have the duty to guarantee their respect (see Digest, op. cit., paras. 55 and 61). The Committee reiterates its previous conclusion, 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 and requests to be kept informed of the measures taken in this regard as well as the results of the investigation.

176. Concerning the investigation into the arson of the ZCTU offices, the Committee takes note of the information of the Government. It reiterates its previous conclusion and requests to be kept informed of any development in this respect.

Case No. 2081 (Zimbabwe)

177. At its November 2003 session, the Committee urged once again 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.

178. In a communication dated 14 January 2004, the Government states that it stands by its earlier position and that it does not intend to amend section 120. Furthermore, the Government states that, "the sole and primary purpose of trade union is to champion workers' rights at the workplace and not to dabble in political activity".

179. The Committee takes note of the Government's reply and deeply regrets that no progress whatsoever has been achieved in this matter.

180. Noting the Government's recent ratification of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee trusts that the Government will make every effort to ensure that its legislation is brought into full conformity with the provisions of the Convention. In this respect, it recalls that according to Article 3 of the Convention, workers' and employers' organizations shall have the right to organize their administration and activities and to formulate their programmes and that public authorities shall refrain from any interference, which would restrict this right or impede the lawful exercise thereof. The Committee therefore draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case.

181. Finally, as regards Cases Nos. 1826 (Philippines), 1854 (India), 1955 (Colombia), 1962 (Colombia), 1973 (Colombia), 1991 (Japan), 2006 (Pakistan), 2038 (Ukraine), 2051 (Colombia), 2079 (Ukraine), 2083 (Canada), 2086 (Paraguay), 2103 (Guatemala), 2105 (Paraguay), 2127 (Bahamas), 2132 (Madagascar), 2139 (Japan), 2140 (Bosnia and Herzegovina), 2144 (Georgia), 2148 (Togo), 2156 (Brazil), 2162 (Peru), 2167 (Guatemala), 2169 (Pakistan), 2178 (Denmark), 2188 (Bangladesh), 2195 (Philippines), 2198 (Kazakhstan), 2206 (Nicaragua), 2220 (Kenya), 2225 (Bosnia and Herzegovina), 2227 (United States), 2233 (France), 2234 (Mexico), 2242 (Pakistan), 2250 (Argentina) and 2252 (Philippines), 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. 1888 (Ethiopia), 1957 and 2047 (Bulgaria), 2126 and 2147 (Turkey), 2171 (Sweden), 2185, 2199 and 2216 (Russian Federation), which it will examine at its next meeting.