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 27, 28 May and 4 June 2004, under the chairmanship of Professor Paul van der Heijden.

2. The members of South African, Salvadorian, Guatemalan and Mexican nationality were not present during the examination of the cases relating to South Africa (Case No. 2197), El Salvador (Case No. 2214), Guatemala (Cases Nos. 2241, 2259 and 2295) and Mexico (Case No. 2282), respectively.

3. Currently, there are 108 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 30 cases on the merits, reaching definitive conclusions in 18 cases and interim conclusions in 12 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 special attention of the Governing Body to Cases Nos. 2249 (Venezuela), 2254 (Venezuela), 2258 (Cuba) and 2313 (Zimbabwe) because of the extreme seriousness and urgency of the matters dealt with therein.

New cases

5. The Committee adjourned until its next meeting the examination of the following cases: Nos. 2326 (Australia), 2327 (Bangladesh), 2329 (Turkey), 2330 (Honduras), 2331 (Colombia), 2332 (Poland), 2333 (Canada), 2334 (Portugal), 2335 (Chile), 2337 (Chile), 2338 (Mexico), 2339 (Guatemala), 2340 (Nepal), 2341 (Guatemala), 2342 (Panama) and 2343 (Canada) since it is awaiting information and observations from the governments concerned. All these cases relate to complaints submitted to 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. 2087 (Uruguay), 2153 (Algeria), 2174 (Uruguay), 2189 (China), 2228 (India), 2264 (Nicaragua), 2268 (Myanmar), 2275 (Nicaragua), 2286 (Peru), 2309 (United States), 2314 (Canada), 2315 (Japan), 2319 (Japan), 2321 (Haiti), 2322 (Venezuela), 2323 (Islamic Republic of Iran) and 2324 (Canada).

Partial information received from governments

7. In Cases Nos. 1787 (Colombia), 2068 (Colombia), 2177 (Japan), 2183 (Japan), 2203 (Guatemala), 2226 (Colombia), 2241 (Guatemala), 2244 (Russian Federation), 2248 (Peru), 2262 (Cambodia), 2287 (Sri Lanka), 2292 (United States), 2298 (Guatemala), 2300 (Costa Rica), 2318 (Cambodia), 2328 (Zimbabwe) and 2336 (Indonesia), 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. 1865 (Republic of Korea), 2138 (Ecuador), 2217 (Chile), 2236 (Indonesia), 2257 (Canada), 2265 (Switzerland), 2274 (Nicaragua), 2276 (Burundi), 2277 (Canada), 2283 (Argentina), 2290 (Chile), 2293 (Peru), 2296 (Chile), 2303 (Turkey), 2304 (Japan), 2306 (Belgium), 2307 (Chile), 2308 (Mexico), 2311 (Nicaragua), 2312 (Argentina), 2317 (Republic of Moldova), 2320 (Chile) and 2325 (Portugal) the Committee has received the governments' observations and intends to examine the substance of these cases at its next meeting. In Case No. 2277 (Canada), the Committee requests the complainant organization to provide the information requested so that it can proceed to the examination of the case in full knowledge of the facts.

Urgent appeals

9. As regards Cases Nos. 2111 (Peru), 2270 (Uruguay), 2273 (Pakistan), 2285 (Peru), 2289 (Peru), 2294 (Brazil), 2302 (Argentina) and 2305 (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.

Suspension of complaint

10. In Case No. 2278 (Canada), the Committee notes that an agreement has been concluded between the complainant organization, l'Association des Substituts du Procureur du Québec, and the Provincial Government of Quebec, with a view to presenting a bill to the National Assembly. The complainant organization will provide its comments thereon once the bill is adopted and enters into force.

Transmission of cases to the Committee of Experts

11. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Bulgaria (Case No. 2047), Cambodia (Case No. 2222) and the Russian Federation (Case No. 2216).

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

Case No. 2053 (Bosnia and Herzegovina)

12. The Committee last examined this case, which concerned the refusal by the authorities to register the complainant trade union (URS FbiH) at its March 2001 session, where it requested the Government to finalize the registration process, to keep it informed of developments, and to bring the legislation into conformity with Convention No. 87 (see 324th Report, para. 234).

13. In a communication of 15 March 2004, the complainant organization informs that it has now been registered, at federal level, as a workers' organization.

14. The Committee notes this information with interest.

Case No. 2156 (Brazil)

15. At its November 2002 meeting, the Committee had requested the Government to keep it informed of the result of inquiries made and of the corresponding court judgements aimed at ensuring that those responsible for the murder of trade unionist Mr. Carlos Alberto Santos would be promptly punished (see 329th Report, para. 18).

16. In its communications of 10 February 2003 and 29 March 2004, the Government indicates that, as part of the criminal proceedings opened in this matter, the Attorney-General of the State of Sergipe has filed charges of murder against two individuals, whose preventive detention has also been requested. The Government also sent numerous information on the status of the proceedings.

17. The Committee notes this information and requests the Government to provide it with the court judgement as soon as it is issued.

Case No. 1957 (Bulgaria)

18. The Committee last examined this case, which concerns the eviction of trade union premises and confiscation of trade union property of the National Syndical Federation (NSF "GMH") at its November 2003 meeting (see 332nd Report, paras. 19-21). On that occasion, the Committee recalled that this complaint, which dates back to March 1998, involved very serious violations of freedom of association principles and urged once again the Government to hold without delay meaningful discussions with the complainant organization with a view to settling the issues of trade union premises and confiscation of trade union property of NSF "GMH" and to keep it informed of developments.

19. In a communication of 6 February 2004, the Government indicates that under article 46 of the Labour Code, state authorities and employers must facilitate trade union activities, including by providing free of charge real estate, premises and other facilities required for the performance of their functions. In this context "provide" means the right to use, not ownership. In addition, the grounds for providing such facilities are the performance of the unions' lawful functions; if the functions in question are irrelevant or are not observed, the grounds themselves are not present. The legislation therefore provides that any state property held in such circumstances is subject to eviction by order of the District Governor. This is why in this case the property in question has been seized, sealed and deposited for safe-keeping. The president of NSF "GMH" has been legally called during and after the eviction but has not appeared for inventory of the property, a list of which is attached to the Government's communication. The Government adds that some items are missing from the initial list and that there remain charges unpaid by GMH, a behaviour the Government considers unfair, non-constructive and in some respects contrary to the law. The Government argues that, under Article 8 of Convention No. 87, workers' organizations should respect the law of the land.

20. Referring further to the information provided as part of Case No. 2047 (see below) on the new representativity criteria for workers' and employers' organizations, the Government states that NSF "GMH" does not have structures and members at enterprise, sectoral and regional levels; and that the organization is not party to any registered collective agreement. In any event, the Government considers real activity by workers' organizations, and not only formal registration. That being so, the Government cannot see any legal possibility to provide for free use of new premises to NSF "GMH".

21. While noting the Government's assertion that NSF "GMH" does not have at present trade union activities, is not a party to any collective agreement and may not, under the law, enjoy the gratuitous use of facilities provided by the state authorities or the employer, the Committee recalls that the acts which initially gave rise to this complaint, i.e. eviction from trade union premises and confiscation of trade union equipment and documents, may constitute serious impediments to trade union activities. The Committee urges the Government to refrain from having recourse to such measures in future.

Case No. 2047 (Bulgaria)

22. The Committee last examined this case at its meeting in November 2003, where it reiterated its hope that the regulation concerning trade union representativeness would be adopted rapidly and that a vote concerning the representativeness of PROMYANA and the Association of Democratic Syndicates (ADS) could take place rapidly on that basis. The Committee also requested the Government to provide it with a copy of the regulation in question (see 332nd Report, para. 24).

23. In a communication of 6 February 2004, the Government indicates that on 11 July 2003, the Council of Ministers adopted an Ordinance on representativeness criteria for workers' and employers' organizations (Ordinance No. 64/18, which entered into force on 21 October 2003) a copy of which is attached to its communication. The procedure provided for in the Ordinance was carried out at the end of 2003: eight organizations of workers and employers have submitted the documents required under the new procedure, but neither PROMYANA nor the ADS are among them. The documents sent by the participating organizations will be analysed and processed by the Ministry and referred to the Council of Ministers for decision. The Committee will be informed in due course of the final result of the procedure.

24. The Committee notes this information and requests the Government to keep it informed of developments. The text of Ordinance No. 64/18 is being brought to the attention of the Committee of Experts for the Application of Conventions and Recommendations.

Case No. 1991 (Japan)

25. The Committee last examined this case at its June 2003 meeting. It concerns allegations of anti-union discrimination arising out of the privatization of the Japanese National Railways (JNR) which were taken over by the Japan Railway Companies (the JRs). The Committee noted that the Tokyo High Court had ruled in October 2002 that the JRs had a responsibility as employers and that the National Railways Workers' Union's (KOKURO) and the All Japan Construction, Transport and General Workers' Union's (KENKORO-TETSUDOHONBU) opposition to the privatization plan was a factor in the decision not to rehire some workers, belonging to these organizations, although the High Court did not infer that this constituted unfair labour practices. The Committee urged the Government to pursue its efforts towards finding a fair solution, acceptable to the largest possible number of workers, and requested the Government to provide it with a copy of the decision of the Supreme Court concerning these workers (see 331st Report, paras. 45-53).

26. In a communication dated 31 October 2003, KENKORO states that it has asked various authorities to implement the Committee's recommendations; the Government's position throughout has been that nothing could be done as the issue was pending before the Supreme Court. In a communication dated 5 January 2004, KENKORO states that the Supreme Court, on 22 December 2003, issued an unfair ruling on the discriminatory hiring practices of the company. In a majority decision (three-two), the Court relied on a mere formality of the JNR Reform Law providing that the list of employees was to be drawn up by the JNR while the hiring decision was to be taken by the JR Founding Committee on the basis of that list. The Court completely dissociated the two acts (establishment of the list by the JNR; hiring by the JRs) to conclude that even if the JNR discriminated against some union members in establishing the list, the JRs could not be held responsible for that discrimination. This majority judgement totally denies a relief to victims and violates Convention No. 98 which provides that "workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment". While the minority opinion clearly disagreed with the High Court that there had not been unfair labour practices, and stated that it "can be assumed that union members had been treated in a discriminatory manner on the sole ground of their affiliation to ZENDORO", the majority decision avoided the issue of anti-union discrimination altogether. Moreover, the Government has failed to implement the Committee's recommendations while awaiting the Supreme Court's decision. When the Diet had examined the draft JNR Reform Law, the Government had repeatedly assured that the JRs would be responsible if the JNR treated workers in a discriminatory manner. The Diet also passed a resolution outlawing anti-union discrimination in the hiring of JR employees and the then Prime Minister promised that he would "not let any (JNR) worker become jobless and destitute". None of these commitments have been kept. After the Supreme Court issued its ruling, KENKORO asked the authorities to re-initiate negotiations between the JRs and the unions concerned to find a solution to the dismissal of the 1,047 workers, to no avail. KENKORO requests that the Committee urge the Government to assume its responsibility in finding an early and fair solution, and send a fact-finding mission to Japan.

27. In a communication dated 20 January 2004, KOKURO also comments on the Supreme Court ruling of 22 December 2003. It points out that the majority decision dismissed all the appeals, held that the JRs had no responsibility "as employers" and that if there were discriminatory hiring practices in 1987, this was the JNR's responsibility. The Court considered that the hirings that took place after the establishment of the JRs were "new recruitments" in respect of which an employer has wide freedom. KOKURO strongly protested this Supreme Court ruling based on a narrow and formalistic interpretation of the JNR Reform Act. The end result is that, in spite of 17 years of proceedings, the various labour relations bodies and the courts could not implement any relief measures for unfair labour practices and protect the right to organize: this demonstrates the shortcomings in the existing mechanism for the protection of the right to organize in Japan.

28. In its communication of 15 April 2004, which includes the full text of the Supreme Court decision, the Government stresses that KOKURO's and KENKORO's comments concern the minority opinion of the Supreme Court. However, the Court has finally ruled that the JRs are not liable as employers and has rejected the demands to rehire the workers. Appeals to the Supreme Court are limited to constitutional issues and to violations of judicial precedents or laws. Oral pleadings are not generally held; the fact that a ruling is made with a one-vote margin does not affect its weight since it is the last court of appeal.

29. As regards the first complainants' argument (i.e. that while the Supreme Court ruling does not deny the judgement of the Central Labour Relations Commission (CLRC) that there were unfair labour practices, it did not implement relief measures in practice and therefore does not protect the right to organize) the Government points out that the Court annulled the CLRC's relief order since it considered that "even if there were acts of unfair labour practices in the process of selecting candidates, the JRs shall not be liable for these acts as employers". Therefore, the Court did not decide whether or not there were unfair labour practices. It is therefore improper to discuss relief measures since there are no grounds to conclude that there were such unfair labour practices.

30. Concerning the second complainants' argument (that even if workers were not hired due to anti-union discrimination, there was no framework in place to protect the right to organize in that no relief was provided in the form of rehiring by the JRs) the Government similarly argues that it is not appropriate to discuss the types of relief on the assumption that unfair labour practices existed, since the Supreme Court did not decide that such practices occurred. While the Court denied the JRs responsibility for unfair labour practices, it stated at the same time that "if JNR committed unfair labour practices in making employment lists, JNR or the Settlement Corporation (currently the Japan Railway Construction Transport and Technology Agency, JRTT), which succeeded JNR's legal status, shall not be exempt from liability as an employer". For the Government, it cannot therefore be said that there is a systemic defect in ensuring the right to organize.

31. As regards the alleged lack of efforts to find a solution, the Government refers to the previously submitted information (see 331st Report, paras. 51-52) showing that it has made every possible effort to find appropriate solutions through: hiring by JRs, including, at a later stage, on a wider area basis; voluntary retirement with special compensation; redeployment in other industries, etc. However, there remained 1,047 people who insisted on getting their original job in their original region; they were finally dismissed by JNR in April 1990 when the Re-Employment Promotion Law expired. In order to achieve a political solution based on humanitarian considerations, the Government convened meetings with the parties on the basis of the Four Party Agreement concluded in May 2000 (which the Freedom of Association Committee has urged the parties to accept). KENKORO did not accept the Agreement and there was disagreement on this issue within KOKURO, which filed another lawsuit against the JRTT. As time passed and no agreement could be found, the Four Party Agreement was ultimately cancelled.

32. The Government concludes that it has made all possible efforts to find a fair and acceptable solution. The workers in question rejected the rather generous re-employment measures by insisting on re-employment by their local JRs without showing any spirit of compromise, relying instead on court proceedings. Following the Supreme Court ruling, it would be extremely difficult for the Government to take any new measure and obtain the consent or understanding of other parties directly concerned, including the current majority railway trade unions, JR SOREN and JR RENGO, which together regroup about 80 per cent of JRs' employees.

33. The Committee notes all the above information and in particular the Supreme Court ruling of 22 December 2003. Although there were apparently differing views within the Court on the issue of unfair labour practices, the majority decision in effect absolves the JRs of any responsibility as employers in this respect. The Committee observes that it has dealt with this case in some depth since 1998, with two detailed examinations on the merits (318th and 323rd Reports) and three follow-ups (325th, 327th and 331st Reports). The Committee notes that the various competent administrative, quasi-judicial or judicial bodies called upon to decide the matter held different views on the issue of unfair labour practices, which in itself indicates the complexity of the factual and legal issues at hand. However, the Committee cannot conclude, on the basis alone of the set of circumstances in this case, that the legal mechanism for protection against anti-union discrimination is deficient as a whole. The problem in the present case was compounded by the fact that the lay-offs, dismissals and rehirings occurred in a context of restructuring of the railway industry, with a major staff reduction. Noting that there have been substantial consultations with trade union organizations and that genuine efforts were made over the years to find a solution (first through re-employment measures based on legal avenues; and then on the basis of political and humanitarian considerations) the Committee regrets that no solution acceptable to all workers and organizations concerned could be found, including on the basis of the Four Party Agreement that, at its November 2000 session, the Committee had urged the parties to accept, as it considered that it offered "a real possibility of speedily resolving the issue of non-hiring by the JRs" (see 323rd Report, para. 376).

34. Noting that the Supreme Court has ruled that "if JNR committed unfair labour practices in making employment lists, JNR or the Settlement Corporation (currently the Japan Railway Construction, Transport and Technology Agency, JRTT) which succeeded JNR's legal status, shall not be exempt from liability as an employer", taking into account the serious nature of the allegations in this case, as well as the serious social and economic consequences that resulted for a large number of workers, the Committee invites the Government to pursue the discussions with all parties concerned in the spirit of political and humanitarian considerations that once prevailed in order to resolve the issues and requests it to keep it informed of developments in this matter.

Case No. 2301 (Malaysia)

35. This case concerns the Malaysian labour legislation and its application which, for many years, have resulted in serious violations of the right to organize and bargain collectively: discretionary and excessive powers granted to authorities as regards trade union registration and scope of membership; denial of workers' right to establish and join organizations of their own choosing, including federations and confederations; refusal to recognize independent trade unions; interference of authorities in internal unions' activities, including free elections of trade union representatives; establishment of employer-dominated unions; and arbitrary denial of collective bargaining. The Committee formulated the following recommendations at its March 2004 meeting (see 333rd Report, para. 599):

(a) The Committee expresses its concern at the fact that several complaints have been filed on these same issues during the last 15 years, on which it made unambiguous recommendations, and that no significant progress could be observed.

(b) The Committee urges once again the Government to introduce in the near future legislation to amend the Trade Unions Act, 1959, and the Industrial Relations Act, 1967, to bring them into full conformity with freedom of association principles, by ensuring:

- that all workers without distinction whatsoever, enjoy the right to establish and join organizations of their own choosing, both at primary and other levels, and for the establishment of federations and confederations;

- that no obstacles are placed, in law or in practice, to the recognition and registration of workers' organizations, in particular through the granting of discretionary powers to the responsible official;

- that workers' organizations have the right to adopt freely their internal rules, including the right to elect their representatives in full freedom; and

- that workers and their organizations enjoy appropriate judicial redress avenues over the decisions of the minister or administrative authorities affecting them.

(c) The Committee requests the Government to amend its legislation so as to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to regulating terms and conditions of employment by means of collective agreements.

(d) The Committee requests the Government to take rapidly appropriate measures and give instructions to the competent administrative authority, so that the 8,000 workers denied representational and collective bargaining rights in 23 named companies may effectively enjoy these rights, in accordance with freedom of association principles.

(e) The Committee requests the complainant and the Government to keep it informed on the court challenges filed by some employers and affecting some 2,000 workers, so that it may make an informed decision in full knowledge of the facts.

(f) The Committee requests the Government to keep it informed of developments on all the abovementioned issues.

(g) The Committee suggests once again that the Government avail itself of the ILO's technical assistance, to help it bring its law and practice into full conformity with freedom of association principles.

36. In a communication dated 15 April 2004, the Government states in connection with recommendation (b): that workers have the right to establish a trade union "if its membership is confined exclusively to workmen employed in a particular establishment, trade, occupation or industry", or to join a union which is registered "in respect of the particular establishment, trade, occupation or industry"; that the Trade Union Act allows for the establishment of federations and affiliation to confederations; that no obstacles are placed, in law or in practice, to recognition and registration of trade unions as long as "their membership is confined to workmen employed in a particular establishment, trade, occupation or industry"; that trade unions have the right to adopt freely their internal rules, including the "right to elect eligible members" to be their representatives in full freedom; and that workers and their organizations have the right to seek legal redress over decisions of the director-general of trade unions affecting them.

37. As regards recommendation (c), the Government indicates that the current legislation is sufficient to encourage and promote the full development and utilization of collective bargaining machinery, and that workers have not been denied their right to representation and collective bargaining "provided that they are represented by a competent union". The Government states that it notes the recommendation concerning the 8,000 workers but that the complainant is in a better position to inform the Committee. As regards the recommendation concerning the court challenges filed by employers and affecting some 2,000 workers, the Government indicates it will fulfil its obligation under article 19 of the ILO Constitution. Finally, as regards the recommendation that the Committee be kept informed of developments on all the above issues, the Government states that it considers that the current law and practice have helped the orderly and healthy development of trade unions, which in turn contributes to industrial harmony in the country.

38. In a communication dated 5 May 2004, the complainant organization (MTUC) refers to the Committee's conclusion that no significant progress could be observed in spite of a series of complaints on the same issues during the last 15 years and requests that a mission be sent to Malaysia to follow up on the Committee's recommendations. In this regard, in a communication dated 26 May 2004, the Government states that the legislative provisions have been successful in maintaining the healthy growth of trade unions, as well as harmonious industrial relations conducive for investment so as to ensure the continuous political, social and economic development. Under the current legislation, workers can join a union related to their work and the union can represent workers in collective bargaining. Consequently, the Government considers that an ILO mission to follow up on the recommendations of the Committee is not necessary.

39. The Committee notes with deep regret that the Government merely reiterates the arguments submitted in its initial reply. The Committee emphasizes that all the points raised by the Government in its communication have already been dealt with at length and rebutted in its previous decision on the merits, including through examination of the relevant provisions of the Trade Unions Act, 1959 (see paras. 586-598, and Annex 1).

40. The Committee deplores the lack of cooperation from the Government on these matters which have been examined by the Committee for 15 years and therefore reiterates its previous recommendations in their entirety and, noting the complainant organization's request, recalls, once again, that the Government may avail itself of the ILO's technical assistance.

Case No. 2185 (Russian Federation)

41. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 146-154). On that occasion, the Committee requested the Government to initiate an independent inquiry into the allegations concerning the creation of a "yellow" trade union at the OAO Novorossiisk Commercial Sea Port (OAO NMTP), as well as the continuing discriminatory policy of the OAO NMTP management towards the primary trade union of the Trade Union of Water Transport Workers (PRVT) and the pressure exercised on individual members of this trade union to leave the PRVT. The Committee also requested the Government to reply to the complainants' allegation that the collective agreement between workers and the OAO NMTP was concluded in violation of the Russian legislation.

42. In its communication of 12 February 2004, the Government indicates that the additional inspection conducted by the National Labour Inspectorate of the Krasnodar Territory revealed that the collective agreement for 2002-04 was signed by the chairperson of the Trade Union of Workers of the Seaports (RMP) of the Krasnodar Territory. At that time, 3,908 workers were employed by the OAO NMTP and four following trade unions were active at the enterprise: primary trade union of the OAO NMTP dockers of the Russian Trade Union of Dockers (1,163 members), primary trade union of the PRVT (168 members), Trade Union of Workers of the Seaports of the Krasnodar Territory, to which 17 primary trade unions are affiliated (2,455 members), and the National Trade Union of Dockers of Southern Russia (60 members). The conference of the RMP Trade Union of the Krasnodar Territory authorized its chairperson to conduct collective bargaining on behalf of 2,455 workers, members of that trade union. Due to the fact that the unified representative body was not established, in conformity with section 37(3) of the Labour Code, the port administration conducted collective bargaining with the RMP Trade Union of the Krasnodar Territory, an organization representing more than half of the employees. The Government further indicates that the representatives of other trade unions participated in discussions on the draft collective agreement. The Government adds that since the current collective agreement expires on 1 May 2004, the port administration took the initiative towards concluding a new collective agreement for 2004-07 by issuing an order to nominate, authorized by the respective trade unions, representatives to the commission responsible for conducting collective bargaining. Finally, the Government points out that no violations of labour legislation were revealed by the inspection.

43. The Committee notes the information provided by the Government.

Case No. 2199 (Russian Federation)

44. The Committee last examined this case, which concerns alleged acts of anti-union discrimination by the administration of the Commercial Seaport of Kaliningrad, at its November 2003 meeting. On that occasion, the Committee requested the Government to indicate whether court decisions to reinstate the dockers, members of the Russian Trade Union of Dockers (RPD), in their posts was fully implemented (see 332nd Report, paras. 155-162).

45. In its communication of 12 February 2004, the Government repeats its previous observations and denies the alleged facts of anti-union discrimination and states that the Russian legislation provides for the effective means of protection of trade union rights. The Government states that the Baltic district court, in its decision of 24 May 2002, ordered the reinstatement of the illegally dismissed dockers. It indicates that this decision was implemented and the dockers were offered jobs at the Transport and Freight Company Ltd. (TPK). Despite the numerous job offers issued by the TPK management, the dockers did not return to work. Finally, the Government indicates that the Commercial Seaport of Kaliningrad (MTPK) is preparing to appeal the above-mentioned decision to the Supreme Court of the Russian Federation.

46. The Committee notes the information provided by the Government.

Case No. 2216 (Russian Federation)

47. The Committee examined this case at its November 2003 meeting (see 332nd Report, approved by the Governing Body at its 288th Session, paras. 891-914) and on that occasion, it formulated the following recommendations:

- As concerns the allegation of no recognition of occupational unions by the Labour Code, especially as concerns their collective bargaining rights, the Committee requests the Government to take all the necessary measures, including the amendment of section 45, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice.

- The Committee requests the Government to amend section 31 of the Labour Code so as to ensure that it is only where there is no trade union at the workplace that workers can elect other representatives to represent their interests.

- As concerns the allegation of violation of the right of trade unions, other than primary trade unions, trade union federations and confederations to conclude collective agreements at the enterprise level, the Committee requests the Government to amend its legislation so as to ensure that higher union structures, as well as federations and confederations have access to the collective bargaining process and enjoy the right to conclude collective agreements.

- As concerns the alleged requirement to obtain an approval of the claims a trade union wishes to make to the employer by the meeting (conference) of employees, the Committee requests the Government to provide additional information as to how section 399 works in practice.

- As concerns the allegation concerning restriction of the right to strike, the Committee requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot.

48. In its communication of 23 January 2004, the Seafarers' Union of Russia (RPSM) once again alleges that section 37 of the Labour Code, which, for the purpose of collective bargaining, gives preference to unions with a larger membership, is incompatible with Conventions Nos. 87, 98 and 154. More particularly, the RPSM alleges that, as concerns the collective agreements at the national, industrial and territorial level, section 37(6) is frequently used to exclude minority unions (trade union associations) from participation in collective bargaining. The majority trade unions refuse to agree on the composition of a unified representative body. Hence, although the Code grants the right to participate in collective bargaining to minority unions, this right is not realizable due to the absence of necessary mechanisms to ensure its implementation (the complainant agrees that at the enterprise level, the conflict between minority unions and trade unions with a larger membership is partially resolved by the provision contained in section 37(5)). The RPSM provides two examples where the requests to participate in collective bargaining with a view to conclude collective agreements at the industrial level made by all-Russia trade unions, which operate outside of the Federation of Independent Trade Unions of Russia (FNPR) structure, were ignored by the representatives of the latter organization.

49. The complainant organization further indicates that contrary to the Government's assertion that the complainant organization has not appealed to national remedies available to it in order to resolve the conflicts arising from the practical application of section 37, it has complained to the Deputy Minister of Labour and Social Development of the Russian Federation, who is the Head State Inspector of Labour, and the Ministry of Labour and Social Development of the Russian Federation. In its communication, the RPSM transmits the relevant documents.

50. In its communication of 12 February 2004, the Government states that, although the conclusion of occupational agreements is not envisaged by section 45 of the Labour Code, section 37(6) of the Code provides for the creation of a single representative body where trade unions are represented according to the principle of proportionality. Thus, the law provides for participation in the collective bargaining of all trade unions, including those consisting of workers of specific occupations.

51. Concerning the recommendation to amend section 31 of the Russian Federation Labour Code, the Government indicates that it cannot agree with the Committee's recommendation to amend this section as it considers that such an amendment would violate the rights of non-unionized workers. The Government points out that, under the Act on trade unions, their rights and guarantees of their activities, the presence of other representative bodies may not be used to undermine the activity of trade unions. Moreover, under section 16 of the Act, trade unions have the right to propose candidates for the election of workers' representatives.

52. With respect to the right of higher trade union organizations to conclude collective agreements, the Government indicates that the interests of workers in collective bargaining are represented by the primary trade union or other representatives elected by the workers. At federal, regional, local and district level, for the purposes of concluding agreements relating to social and economic policies, workers are represented by trade unions, their territorial organizations and trade union associations (regional and all-Russia). The Government therefore considers that the alleged violation of the right of higher trade union organizations (federations or confederations) to conclude collective agreements at the enterprise level is unfounded, since this right of the workers is exercised either directly or through the appropriate representative bodies, as determined by the legislation.

53. As concerns the application in practice of section 399 of the Labour Code, the Government states that the following industrial disputes were registered by the north-west territorial branch of the Russian Ministry of Labour in 2003: the free primary trade union of TETs submitted its demands to the administration of the State Shoe Factory; the trade union of the Chemical-Pharmaceutical Company OAO "ICN October" registered an industrial dispute with the management of that company; the trade union committee of the primary trade union of the "Prikladnaya Himiya" enterprise submitted its demands to the management of the company; and the workers' group of the International Information Centre for the preparation and celebration of the tercentenary of Saint Petersburg registered an industrial dispute that arose between the workers' group and the management of the Centre. All these demands were submitted by workers' groups. The Government indicates that the registration of disputes with the Government's office for the settlement of industrial disputes and the participation of its staff in resolving disputes yielded positive results. No difficulties were found concerning compliance with the provision that a quorum of two-thirds of the workers of the organization is required to submit demands and to declare a strike.

54. Concerning the request to amend section 410 of the Russian Federation Labour Code, the Government indicates that it considers the requirement of this section to be in conformity with the international legal standards. This requirement to take decisions on declaring a strike by a majority vote of workers of the organization has existed since the adoption, in 1995, of the law on procedure for resolution of collective labour disputes. The Government further indicates that, since in practice there are no obstacles to strike action and no trade union has been dissolved for conducting a strike, it considers that there is no need to review the current legislation in this respect.

55. Finally, the Government states that contrary to the complainant's allegation that only the representatives of the FNPR were involved in the discussion on the new Labour Code, the President of the Russian Trade Union Congress and the President of the Council of the All-Russia Labour Congress were members of the working groups responsible for drafting proposals. To support its statement, the Government forwards the copy of the Decree of the State Duma of 15 March 2001, N1250-III GD.

56. The Committee notes the information provided by the complainant and the Government. The Committee notes the complainant's concerns over the preference given by the Labour Code to majority unions in the collective bargaining process at all levels (enterprise, as well as territorial, industrial and national). The Committee recalls that in its previous examination of this case, as well as in Case No. 2251, it dealt with this allegation (see 332nd Report, para. 907, and 333rd Report, para. 979, approved by the Governing Body at its 289th Session). It considered on these occasions that the approach favouring the most representative trade union for collective bargaining purposes at the enterprise or a higher level is not incompatible with Convention No. 98. The Committee notes from the complainant's communication that the problem at issue involves a conflict between different trade unions. It points out that inter-union rivalry is outside the scope of Convention No. 98.

57. While taking into account the Government's explanation concerning section 45 of the Labour Code, the Committee notes the Government's indication that conclusion of occupational agreements is not envisaged by the legislation. The Committee recalls that in this case, as well as in Case No. 2251 (see 333rd Report, para. 978), the complainant referred to the difficulties encountered by trade unions defending the interests of particular professions. The Committee points out that legislation should not constitute an obstacle to collective bargaining at the occupational or professional level. It therefore once again requests the Government to take all the necessary measures so as to ensure that a possibility to conduct collective bargaining at occupational or professional level exists both in law and in practice.

58. Concerning its request to amend section 31 of the Labour Code, the Committee notes the Government's disagreement. The Committee once again refers to the Collective Agreements Recommendation, 1951 (No. 91), which stresses the role of trade union organizations as one of the parties in collective bargaining and refers to representatives of non-unionized workers only when no trade union organization exists at the enterprise. A provision which permits collective bargaining with other workers' representatives, bypassing trade union existing at the enterprise does not promote collective bargaining. The Committee therefore once again requests the Government to amend section 31 so as to ensure the application of the abovementioned principle.

59. As concerns the right of trade unions, other than primary trade unions, to conclude collective agreements, the Committee recalls that it also had to deal with this question in Case No. 2251 (see 333rd Report, paras. 973-975). The Committee recalls that the complainant's concern in the present case was that trade unions, as well as federations and confederations of trade unions, could not represent workers during collective bargaining at the enterprise level. In Case No. 2251, the complainant alleged that the rights to collective bargaining of the so-called "stand-alone" trade unions (trade unions, which are not organizational structures of a higher trade union body) were restricted. The Committee notes the information provided by the Government in this respect. It finds, however, that it is still rather unclear whether trade unions, other than primary trade unions, can represent workers during collective bargaining at the enterprise level. The Committee requests the Government to take steps so that the law and practice permit the promotion of collective bargaining with the organizations freely chosen by the workers. The Committee therefore requests the Government to clarify whether the abovementioned structures of trade union organizations can represent workers' interests during collective bargaining at the enterprise level.

60. The Committee notes that the information provided by the Government regarding practical application of section 399 of the Labour Code does not clarify whether trade unions need to refer to a meeting or conference of employees every time there is a claim to be made to an employer, as it is in the case of non-union representatives. The Committee once again requests the Government to provide information in this respect.

61. As concerns the quorum required for a strike ballot pursuant to section 410 of the Labour Code, the Committee notes the Government's disagreement with the Committee's recommendation to lower it. The Committee points out that, since 1996, the Committee of Experts on the Application of Conventions and Recommendations has also been requesting the Government to amend its legislation so as to lower the quorum required for a strike ballot, which it considers too high. Therefore, the Committee once again requests the Government to amend its legislation so as to lower the quorum required for a strike ballot.

62. The Committee once again draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

Case No. 2171 (Sweden)

63. At its November 2003 session the Committee examined this case which concerns a statutory amendment enabling workers to remain employed until the age of 67 and prohibiting negotiated clauses on compulsory early retirement. The Committee once again requested the Government to take remedial measures so that agreements already negotiated on pension matters continue to produce all their effects until their expiry dates. It also requested the Government to keep it informed of the results of consultations on pension issues with the bargaining partners with a view to finding a solution that would be in conformity with the Conventions on freedom of association ratified by Sweden (see 332nd Report, para. 165).

64. In a communication of 9 March 2004, the Government clarifies that the new mandatory rule (2001:298) in the Employment Protection Act (1982:80) entitles, but does not oblige, workers to remain employed until the end of the month they are 67 years old. This provision was introduced with the new pension system under which the computation of income-related old-age pension is based on the lifetime income principle. There is no upper age limit to the earning of pension rights under this scheme. According to the compulsory public scheme, income-related old-age pension can still be paid from the month persons reach their 65th birthday, but they may request an early pension (from age 61) or a deferred one. The right to remain employed until the age of 67 enables workers to earn pension rights for a longer time. Under the Employment Protection Act, as amended, it is no longer possible to conclude agreements obliging workers to retire earlier than the age of 67; however, it is still possible to make an agreement specifying an earlier age at which workers are entitled to retire with a pension. Provisions on pension rights contained in collective agreements already negotiated thus continue to produce their effects until their expiry dates. The Government therefore assumes that the case concerns only the right to remain employed (agreements on compulsory retirement age) and not pension rights.

65. The Government adds that a meeting took place with the bargaining partners on 12 June 2003. In the public sector (State and local governments) new agreements on retirement age, adapted to the Employment Protection Act as amended, have been concluded; in other cases, agreements were under way but not formally concluded yet. Like before, no pension points under the collective agreement scheme are earned after the age of 65. As for the private sector, new agreements on retirement age have not been concluded.

66. The Committee notes this information. It nevertheless recalls its previous request that the Government should take remedial measures so that agreements already negotiated on pension matters continue to produce all their effects until their expiry dates. The Committee asks the Government to provide information on the results obtained at the meeting with the bargaining partners on 12 June 2003 and on any further consultations held. The Committee asks the Government to implement its recommendations, in conformity with freedom of association principles, and to keep it informed of developments.

Case No. 2126 (Turkey)

67. The Committee last examined this case at its meeting in March 2003 (see 330th Report, paras. 148-152). The Committee recalls that the allegations in this case concerned the change of branch activity classification of the Pendik and Alaybey shipyards from "shipbuilding" to "national defence", which resulted in the loss of representation rights for the Dok Gemi-Is trade union on behalf of workers involved (see 327th Report, paras. 838-839). At this point it should also be recalled that section 3 of Act No. 2821 on trade unions provides that trade unions may be formed at industrial level by workers employed in establishments in the same branch activity. Under section 4, the branch of activity covering an establishment is to be determined by the Ministry of Labour and Social Security, and the parties concerned may appeal the decision to the competent courts.

68. Allegations of anti-union discrimination were also raised and more specifically: (a) allegations of the impending dismissal of 1,100 workers of the Haliç and Camialti shipyards, virtually all of whom were alleged to be Dok Gemi-Is members; (b) allegations of harassment and intimidation of Dok Gemi-Is members by management of the Pendik and Alaybey shipyards, including the dismissal of the maximum number of workers allowed by law (nine per month), and the dismissal of some 200 workers at the ship-scrapping site at Aliaga the day after they had agreed to join the Dok Gemi-Is union (see 327th Report, para. 845).

69. The case was first examined by the Committee at its session in March 2002. In the course of its last two examinations at its meetings in November 2002 and March 2003, the Committee expressed deep regret at the Government's unwillingness to give effect to the recommendations of the Committee on these allegations, and in particular to: (a) take the necessary measures so as to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to ensure that any lost membership in this union as a result of the classification of these shipyards as falling within the national defence be immediately restored; (b) to institute independent investigations into all the allegations of anti-union discrimination and to take the necessary remedial steps if these allegations are proven to be true.

70. The Government sent a first communication dated 10 September 2003 in which it pointed out that the necessary information was given in its previous responses on the case. In a second communication of 9 March 2004, the Government recalled that Dok Gemi-Is had asked for the determination of the branch of activity under which Pendik and Alaybey shipyards should be classified, in accordance with section 4 of Act No. 2821. Following the examination of this demand, it was decided that these shipyards fell into the national defence branch of activity. This decision was promulgated in the Official Gazette and subjected to an objection by Dok Gemi-Is. The labour court rejected this objection and its decision was upheld by the Supreme Court. Once the classification procedure had been completed, the workers employed in the Pendik and Alaybey shipyards could exercise their right to freedom of association by becoming members of Türk Harb-Is Sen. The Government pointed out that all the administrative actions and decisions were taken in accordance with Act No. 2821 on trade unions and Act No. 2822 on collective agreements, strike and lockout and had been reviewed by the competent courts.

71. Concerning the allegations of anti-union discrimination, the Government indicated that it received a communication from the lawyer of Dok Gemi-Is submitting an appeal to the Ministry of Labour and Social Security concerning the dismissals of workers from the Pendik shipyard. This appeal was sent to the Ministry of National Defence; the Government has provided a copy of a letter confirming this transmission. The Government has also attached a copy of the reply of the Ministry of Labour and Social Security to Dok Gemi-Is' lawyer. In this letter, the Ministry indicates in particular that the issue of the dismissals has been forwarded to the Ministry of National Defence. The Government underlined that Dok Gemis-Is did not submit any appeal on other issues; therefore, no other investigation was carried out. The Government explained that under article 91 of the new Labour Law No. 4857, which entered into force on 10 June 2003, complaints for infringements of the labour legislation are investigated by the labour inspectors of the Ministry of Labour and Social Security (MLSS).

72. With respect first to the organizational and representational rights of workers affiliated to Dok Gemis-Is, in view of the Government's observations, the Committee must underline that neither the application of the national legislation with respect to the classification of two shipyards in the national defence sector nor the exercise of freedom of association in respect of Türk Harb-Is Sen are at issue in the present case. The core question is the compatibility of the legal provisions concerning such classification, and its impact in respect of Dok Gemis-Is trade union and its members, with the Conventions relating to freedom of association ratified by Turkey. The Committee recalls once again that it had found that "the classification of the Pendik and Alaybey shipyards as part of the national defence sector, with the resulting loss of trade union membership and representation, constitutes a violation of both the organizational and the representational rights of the workers affiliated to Dok Gemi-Is, in contravention of Convention No. 87 (ratified by Turkey)" (see 327th Report, para. 844). In this respect, the Committee must underline once again that the Committee of Experts on the application of Conventions and Recommendations has raised questions about the criteria on which the Ministry of Labour determines that a worksite belongs to a particular branch of activity under section 4 of Act No. 2821; in particular, that Committee considered that the classification and its modification should be determined "according to specific, objective and pre-established criteria". Noting that, two years after its first examination of the case, the Government still refuses to take the measures recommended by the Committee, the Committee firmly urges the Government to give effect to its recommendations and more specifically, to take the necessary steps to guarantee the right of Dok Gemi-Is to organize and represent its members in the Pendik and Alaybey shipyards and to ensure that any resulting lost membership in the Dok Gemi-Is trade union be immediately restored. The Committee requests the Government to keep it informed in this respect.

73. Turning to the allegations of anti-union discrimination, the Committee notes that the Government seems to consider that it can only act when allegations of anti-union discrimination are submitted directly to governmental authorities. This is not the first time that the Government has recourse to such an argument, ignoring the allegations identified by the Committee and its recommendations in its successive reports and, in particular, the institution of independent investigations into the allegations of anti-union discrimination. The Committee recalls in this respect that complaints of anti-union discrimination should be examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned who should participate in the procedure in an appropriate and constructive manner (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 738 and 750). The Committee trusts that the Government will also bear in mind this principle when tackling the allegations that have been submitted to the Ministry of Labour by Dok Gemi-Is and referred to the Minister of Defence. The Committee once again urges the Government to institute independent investigations without delay into each of the allegations of anti-union discrimination raised in the present case and, if these allegations are proven, to take all the necessary remedial steps, including reinstatement, without loss of pay, in their jobs of workers dismissed or adequate compensation for damages suffered by those dismissed.

74. In view of the above, the Committee must solemnly express its concern over the absence of progress made to give effect to its recommendations in this case since its first examination two years ago. This is all the more regrettable as the events raised in the complaint occurred more than four years ago and any infringements to freedom of association, which might have occurred at the time, may have by now irreversible effects. The Committee expects the full cooperation of the Government in the future, with a view to fulfil its commitments undertaken by ratifying Conventions Nos. 87 and 98.

Case No. 2147 (Turkey)

75. The Committee last examined this case at its meeting in March 2002 (see 327th Report, paras. 848-867). The Committee recalls that the allegations concerned the non-renewal of the contract of Mr. Mehmet Akyüz, the branch president of the Samsun section of the Turkish Teachers' Union, for anti-union reasons. More specifically, the complainant alleged that the non-renewal of contract was due to public statements made within the framework of discussions concerning the draft law on public servants' trade unions. For its part, the Government asserted that this was one of the reasons for the dismissal but that Mr. Akyüz had also been rebuked on an earlier occasion. Both the Government and the complainant agreed that the public statements were made in Mr. Akyüz's capacity as president of the local branch union; the Government added that these statements were insulting towards the university.

76. Considering that the non-renewal of a contract for anti-union reasons constituted a prejudicial act within the meaning of Article 1 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Committee requested the Government to institute an inquiry into the motivations for the non-renewal of Mr. Mehmet Akyüz's contract and to review this decision in the light of the principle of freedom of expression in respect of trade union matters recalled by the Committee (see 327th Report, para. 865).

77. The Government sent two communications dated, respectively, 10 September 2003 and 9 March 2004. In the latter communication, the Government indicated that it was not possible to institute the inquiry requested by the Committee since the matter had been submitted to the competent courts by Mr. Mehmet Akyüz. The Government underlined that final decisions have been handed down and that therefore Mr. Mehmet Akyüz exhausted all the legal recourses opened to him. More specifically, from some of the documents provided by the Government (one of the documents is illegible), it seems that Mr. Mehmet Akyüz submitted two claims. The first claim related to the loss of fees sustained because of the university's decision to assign classes he was originally due to give to another lecturer. This claim was rejected by the Samsun Administrative Court in a decision of 13 September 2001, upheld by the eight court of the Council of State in a decision dated 6 November 2002. The second claim related to the non-renewal of contract. This claim was also rejected by the Samsun Administrative Court in a decision of 25 December 2001 which was confirmed by the Council of State in a decision of 20 November 2002. Underlining that the administration must comply with court decisions under the national Constitution, the Government indicated that the only recourse left is an appeal to the European Court of Human Rights.

78. The Committee takes note of the information submitted by the Government and in particular that, since the Committee's last examination of the case, actions were lodged in the courts and decisions were duly taken in accordance with the usual and appropriate judicial mechanisms.

Case No. 2038 (Ukraine)

79. The Committee last examined this case at its November 2003 meeting when it noted with interest the amendment of section 16 of the Trade Unions Act (see 332nd Report, paras. 172-174).

80. In its communication dated 31 January 2004, the Government forwards the copy of amended section 16 of the Trade Unions Act.

81. The Committee notes that according to newly amended section 16 of the Trade Unions Act, "a trade union acquires the rights of a legal person from the moment of the approval of its statute". However, according to section 3 of the Act of Ukraine on the state registration of legal persons and physical persons-entrepreneurs of 15 May 2003, "the associations of citizens (including trade unions), for which special conditions for state registration have been established under the Act, shall obtain the status of legal person only after their state registration, to be conducted in accordance with the order established by the present Act", and, according to section 87 of the Civil Code of 16 January 2003, an organization acquires its rights of legal personality from the moment of its registration. The Committee notes the contradiction in the legislation and requests the Government to provide clarification in this respect without delay.

Case No. 2079 (Ukraine)

82. The Committee last examined this case at its November 2003 meeting when it requested the Government: (1) to clarify the situation of the Volynskaya Province division of the All-Ukrainian Trade Union "Capital-Region" as far as its registration with local authorities is concerned; (2) to set up an independent inquiry into dismissal of Mr. Linik and if there was evidence that he had been dismissed for reasons linked to his legitimate trade union activities, to take all necessary measures to reinstate him in an appropriate position without loss of pay or benefits; (3) to set up an independent inquiry into the alleged violations of trade union rights at the "AY-I EC Rovnoenergo" enterprise and keep it informed in this respect; and (4) to provide information on the alleged violations of trade union rights at the "Volynoblenergo" enterprise (see 332nd Report, paras. 175-178).

83. In its communication of 8 January 2004, the Government indicates that it has requested the Central Administrations of Labour and Social Protection of Population to conduct thorough examination of the alleged violations of trade union rights in Volynskaya and Rovenskaya Provinces and assures that the results of the investigations will be sent to the Committee. In its communication of 31 January 2004, the Government states that in July 2002, the Territorial State Labour Inspection of the Rovenskaya Province together with the regional office of the National Service of Mediation and Reconciliation examined the allegations made by the Chairperson of the "Capital-Region" trade union concerning negotiation of the collective agreement for 2002 at the "AY-I EC Rovnoenergo". The Government indicates that a joint representative body, composed of an equal number of representatives from the administration and the trade union organizations, including the Chairperson of the "Capital-Region", was established for collective bargaining purposes. According to its section 1.1, "the Agreement is concluded between the owner of the 'AY-I EC Rovnoenergo'" (...) and the joint representative body of the working collective of the "AY-I EC Rovnoenergo", which includes the trade union of workers of energy sector and electrical industry of Ukraine and the All-Ukrainian Trade Union "Capital-Region". The Government states that this section testifies to the recognition of the legitimacy of both trade unions present at the enterprise. It further states that two sections recognizing the trade union of workers of energy sector and electrical industry of Ukraine as an exclusive representative of the workers at the enterprise were in fact included in the collective agreement. The inspection concluded that these provisions were discriminatory against the All-Ukrainian Trade Union "Capital-Region" and requested the manager of the enterprise and the chairperson of the trade union committee to bring them into conformity with the legislation. On 25 October 2002, the Conference of the working collective of the enterprise amended the collective agreement and extended the period of its validity for the year 2003. The Government further indicates that no other issues had been raised concerning the violation of the legislation by the owner of the "AY-I EC Rovnoenergo" with regard to the trade union "Capital-Region".

84. Concerning the Committee's request to clarify the situation of the Volynskaya Province division of the All-Ukrainian Trade Union "Capital-Region" as far as its registration with local authorities is concerned, the Government indicates that no documents for the registration of this organization were submitted to the regional Department of Justice.

85. Concerning the dismissal of Mr. Linik on 26 May 1999, the Government indicates that it was carried out without the violation of the existing legislation. The Government further states that Mr. Linik did not lodge an appeal against this decision of the administration, neither with a labour dispute commission of the enterprise nor with the court. Finally, the Government states that the allegations of the persecution of Mr. Linik for his trade union activities were not corroborated.

86. The Government further indicates that the Regional State Administration examined the allegations of the persecution of the trade union activists of the complainant organization and concluded that there was no violation of trade union rights. The Government points out that at present, the primary trade union organization of the All-Ukrainian Trade Union at the Lutsk Bearing Plant is not functioning.

87. The Committee notes the statement of the Government. With regard to the alleged violations of trade union rights at the "AY-I EC Rovnoenergo" and "Volynoblenergo" enterprise, the Committee notes that in its communication of 8 January 2004, the Government indicates that it has requested the Central Administrations of Labour and Social Protection of the Population to conduct thorough examination of allegations of violation of trade union rights in Rovenskaya and Volynskaya Provinces. The Committee notes, however, that in its communication of 31 January 2004, the Government refers to the investigation carried out in July 2002. The Committee reiterates its previous request and urges the Government to transmit the conclusions of the independent investigation on violations of trade union rights at the "AY-I EC Rovnoenergo" and the "Volynoblenergo" enterprise, alleged by the complainant in its communications of 2 January and 5 May 2003.

88. Concerning the dismissal of Mr. Linik, the Committee notes the Government's indication that Mr. Linik did not lodge an appeal against this decision of the administration, neither with a labour dispute commission of the enterprise nor with the court. It recalls, however, that in its communication of 14 April 2003, the Government refers to the April 1999 decision of the Territorial State Labour Inspectorate, which examined the representation of Mr. Linik concerning his dismissal. It further recalls that since February 2000, the Committee has been asking the Government to set up an independent inquiry into this case. The Committee once again reiterates its request and, if there is evidence that Mr. Linik had been dismissed for reasons linked to his legitimate trade union activities, it urges the Government to take all the necessary measures to reinstate him in an appropriate position without loss of wages and benefits or, if reinstatement is not possible, to pay Mr. Linik an adequate compensation.

Case No. 2160 (Venezuela)

89. At its March 2004 meeting, the Committee requested the Government to transmit the judgement concerning the denial of registration of the Trade Union of Revolutionary Workers of the New Millennium, and requested the complainant trade union to indicate whether the following trade unionists remained dismissed: Jorge Amaro, Alfredo Aular, Guido Sivira, Otiel Montero and Orlando Acuña (see 333rd Report, para. 166).

90. In its communications of 30 October 2003 and 3 March 2004, the Government attaches a ruling of the Supreme Court of Justice (Political/Administrative Chamber) which acknowledges that the four individuals who had requested the cancellation of the administrative decision (concerning the denial of registration of the Trade Union of Revolutionary Workers of the New Millennium) had withdrawn their claim.

91. The Committee notes this information and requests once again the complainant trade union to indicate whether the following trade unionists remain dismissed, for having participated in the establishment of the trade union: Jorge Amaro, Alfredo Aular, Guido Sivira, Otiel Montero and Orlando Acuña.

92. Finally, as regards the following cases, the Committee requests the governments concerned to keep it informed as soon as possible of any developments relating to these cases:

- case examined for the last time in November 2002: 2140 (Bosnia and Herzegovina);

- cases examined for the last time in March 2003: 2105 (Paraguay), 2192 (Togo);

- cases examined for the last time in June 2003: 1955 (Colombia), 1962 (Colombia), 2127 (Bahamas), 2162 (Peru), 2169 (Pakistan), 2220 (Kenya);

- cases examined for the last time in November 2003: 1826 (Philippines), 1854 (India), 2086 (Paraguay), 2132 (Madagascar), 2148 (Togo), 178 (Denmark), 2188 (Bangladesh), 2195 (Philippines), 2198 (Kazakhstan), 2225 (Bosnia and Herzegovina), 2233 (France), 2242 (Pakistan), 2250 (Argentina);

- cases examined for the last time in March 2004: 1890 (India), 1937 (Zimbabwe), 1951 (Canada), 1952 (Venezuela), 1975 (Canada), 1996 (Uganda), 2027 (Zimbabwe), 2084 (Costa Rica), 2088 (Venezuela), 2096 (Pakistan), 2104 (Costa Rica), 2125 (Thailand), 2133 (The former Yugoslav Republic of Macedonia), 2141 (Chile), 2150 (Chile), 2158 (India), 2161 (Venezuela), 2164 (Morocco), 2166 (Canada), 2172 (Chile), 2173 (Canada), 2175 (Morocco), 2180 (Canada), 2181 (Thailand), 2182 (Canada), 2186 (China/Hong Kong Special Administrative Region), 2196 (Canada), 2208 (El Salvador), 2221 (Argentina), 2229 (Pakistan), 2230 (Guatemala), 2237 (Colombia), 2251 (Russian Federation), 2272 (Costa Rica), 2281 (Mauritius), 2284 (Peru), 2288 (Niger), 2291 (Poland), 2299 (El Salvador).

93. The Committee trusts that these governments will quickly provide the information requested.

94. In addition, the Committee has just received information concerning Cases Nos. 1965 (Panama), 1970 (Guatemala), 2017 and 2050 (Guatemala), 2048 (Morocco), 2103 (Guatemala), 2118 (Hungary), 2134 (Panama), 2146 (Serbia and Montenegro), 2204 (Argentina), 2227 (United States), 2234 (Mexico), 2243 (Morocco), 2252 (Philippines) and 2255 (Sri Lanka), which it will examine at its next meeting.