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 4, 5, 6 and 12 November 2004, under the chairmanship of Professor Paul van der Heijden.

2. The members of Burundian, Indian, Pakistani and Swiss nationality were not present during the examination of the cases relating to Burundi (Case No. 2276), India (Case No. 2228), Pakistan (Case No. 2273) and Switzerland (Case No. 2265) respectively.

3. Currently, there are 140 cases before the Committee, in which complaints have been submitted to the governments concerned for their observations. At its present meeting, the Committee examined 36 cases on the merits, reaching definitive conclusions in 26 cases and interim conclusions in 10 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 Case No. 1787 (Colombia) 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. 2346 (Mexico), 2348 (Iraq), 2349 (Canada), 2350 (Republic of Moldova), 2352 (Chile), 2353 (Venezuela), 2356 (Colombia), 2357 (Venezuela), 2358 (Romania), 2359 (Uruguay), 2360 (El Salvador), 2361 (Guatemala), 2362 (Colombia), 2363 (Colombia), 2364 (India), 2367 (Costa Rica), 2368 (El Salvador), 2371 (Bangladesh), 2372 (Panama), 2373 (Argentina), 2374 (Cambodia), 2375 (Peru), 2376 (Ivory Coast), 2377 (Argentina), 2378 (Uganda), 2379 (Netherlands), 2380 (Sri Lanka), 2382 (Cameroon), 2384 (Colombia), 2385 (Costa Rica), 2386 (Peru), 2387 (Georgia), 2388 (Ukraine), 2389 (Peru), 2390 (Guatemala) and 2391 (Madagascar) 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), 2174 (Uruguay), 2241 (Guatemala), 2254 (Venezuela), 2259 (Guatemala), 2264 (Nicaragua), 2269 (Uruguay), 2275 (Nicaragua), 2279 (Peru), 2286 (Peru), 2295 (Guatemala), 2313 (Zimbabwe), 2314 (Canada), 2326 (Australia), 2327 (Bangladesh), 2329 (Turkey), 2331 (Colombia), 2333 (Canada), 2334 (Portugal), 2337 (Chile), 2339 (Guatemala), 2341 (Guatemala), 2342 (Panama) and 2343 (Canada).

Partial information received from governments

7. In Cases Nos. 2177 (Japan), 2183 (Japan), 2189 (China), 2203 (Guatemala), 2248 (Peru), 2249 (Venezuela), 2258 (Cuba), 2262 (Cambodia), 2268 (Myanmar), 2277 (Canada), 2287 (Sri Lanka), 2298 (Guatemala), 2309 (United States), 2318 (Cambodia), 2328 (Zimbabwe), 2355 (Colombia) and 2366 (Turkey), 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), 2153 (Algeria), 2214 (El Salvador), 2239 (Colombia), 2300 (Costa Rica), 2315 (Japan), 2319 (Japan), 2323 (Islamic Republic of Iran), 2324 (Canada), 2332 (Poland), 2336 (Indonesia), 2338 (Mexico), 2340 (Nepal), 2344 (Argentina), 2347 (Mexico), 2351 (Turkey), 2354 (Nicaragua), 2365 (Zimbabwe), 2369 (Argentina), 2370 (Argentina), 2381 (Lithuania) and 2383 (United Kingdom), 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. 2244 (Russian Federation), 2292 (United States) and 2321 (Haiti), 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. The Committee suspended the examination of Case No. 2278 (Canada) at the request of the complainant organization. The Committee is awaiting the comments announced by that organization.

Receivability of a complaint

11. In Case No. 2322 (Venezuela), the Committee is awaiting the comments of the Latin-American Workers' Central Organization (CLAT), that filed the complaint whose receivability has been challenged by the Government.

12. The Committee considered a complaint against the Government of Mexico submitted by the representative of a list presented for trade union election at the Single Trade Union of Electricity Workers of Mexico (SUTERM) and supported by the International Energy and Mines' Organization (IEMO) not to be receivable.

Transmission of cases to the Committee of Experts

13. 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: Burundi (Case No. 2276) and Canada (Case No. 2257).

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

Case No. 2204 (Argentina)

14. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 216 to 230). On that occasion, the Committee requested the Government to transmit its observations on the allegation that Mr. Claudio Lepratti, trade union representative of the Association of State Workers, was murdered by police in Rosario City, whilst he was carrying out his professional duty in a school canteen, and to keep it informed of any judicial inquiry undertaken in this respect.

15. In its communication of 21 September 2004, the Government provided a copy of the judgement issued by Criminal Court No. 5 as regards the proceedings launched against Mr. Esteban Ernesto Velazquez for the murder of Mr. Claudio Lepratti. According to that judgement: (1) Mr. Velazquez (a policeman) was convicted of aggravated murder, with use of a firearm, and sentenced to 14 years of prison for homicide; (2) Mr. Velazquez and the Province of Santa Fe have been jointly sentenced to pay for that crime a compensation of 50,000 pesos for pecuniary damages and 120,000 pesos for moral damages.

16. The Committee takes note of this information.

Case No. 2224 (Argentina)

17. The Committee last examined this case at its June 2004 meeting and on that occasion requested the Government to take the necessary steps to ensure that the competent authorities of Misiones Province immediately transfer to the Association of State Workers (ATE), in money of legal tender, the amount of the trade union dues of its members that it wrongfully withheld between January 1994 and October 1996, with payment of the corresponding interest (see 334th Report, paras. 132-146).

18. In a communication of 9 September 2004, the Government indicates that a payment agreement was concluded between the Government of Misiones Province and the ATE on 9 March 2004. By virtue of the agreement, a consensus was reached to pay the amounts owed by the Province plus interests in money of legal tender and in four monthly instalments. The Government adds that three of the four instalments have already been paid and the agreement is being fully implemented.

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

Case No. 2256 (Argentina)

20. The Committee last examined this case at its June 2004 meeting (see 334th Report, paras. 147-165). On that occasion, on examining allegations regarding the failure of the Directorate General of Schools (DGE) of the province of Mendoza to appoint its representatives to continue to negotiate a collective agreement for the sector with the United Union of Education Workers of Mendoza (SUTE), the Committee recalled that Article 4 of Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, 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 the regulation of terms and conditions of employment by means of collective agreements. Consequently, the Committee requested the Government to take measures to this effect and to keep it informed on the outcome of the negotiation of the collective agreement in question. Moreover, the Committee requested the Government to keep it informed of the final decision handed down by the judicial authority with respect to the participation by a new trade union organization, the Union of Argentine Teachers (UDA), in the renegotiation of joint accord No. 1 of 1999 concluded between the SUTE and the DGE.

21. In a communication dated 26 August 2004, the Government states that, in the case of the action for the protection of constitutional rights presented by the SUTE against the DGE, the Supreme Court of Justice of the province of Mendoza rejected the claim made by the SUTE through its decision of October 2003, thus confirming the decision of the Civil Court of Appeal, and alongside it the suspension of the call for the election of the Assessment and Disciplinary Boards (this would involve the participation of the UDA organization in negotiations). The Government adds that, regarding the procedure followed in order to agree on collective bargaining for the sector, the intention of the provincial government to convene negotiations on a collective labour agreement for the public sector was confirmed in Law No. 7183. This was implemented through Decree No. 955/04, article 2 of which states "The collective bargaining process for workers of the Public Administration shall be convened...". In article 1 of resolution No. 170-G/04, the Public Administration Ministry "invites the parties to begin the collective bargaining process related to Provincial Public Administration in the Education Sector". The Government adds that the DGE has already begun internal administrative procedures in order to proceed to the appointment of the public employees who will represent the DGE during the collective bargaining process convened in Decree No. 955/04.

22. The Committee takes note of this information. The Committee expresses the hope that, following the start of the administrative procedures as reported by the Government, a collective agreement will be concluded for the sector. The Committee requests the Government to keep it informed in this respect.

Case No. 2188 (Bangladesh)

23. The Committee last examined this case at its November 2003 session (see 332nd Report, paras. 13-15). On that occasion, in relation to the case of Ms. Taposhi Bhattachajee, the Committee strongly hoped that the Appellate Division of the Supreme Court would issue a judgement confirming the High Court decision reinstating her in her job with full benefits and requested the Government to provide it with a copy of the judgement once issued. In relation to the warnings issued to ten members of the trade union executive committee for legitimate trade union activities, the Committee once again urged the Government to give appropriate directions to the management of the Shahid Sorwardi Hospital so that these warnings are withdrawn from their personal files, and requested to be kept informed in this respect.

24. In a communication dated 3 July 2004, the Government stated that, in accordance with the verdict passed by the High Court Division of the Supreme Court of Bangladesh, Ms. Bhattachajee was reinstated in her job with full benefits.

25. In relation to the case of Ms. Bhattachajee, the Committee notes the information provided by the Government confirming that Ms. Bhattachajee was reinstated with full benefits following the decision of the High Court Division of the Supreme Court. The Committee regrets to note, however, that this appears to be the same court decision referred to in the Government's earlier communications, in respect of which the Government had advised the Committee on 6 September 2003 that it had instigated an appeal and so the case was still pending.

26. For that reason, the Committee requests the Government to clarify whether the case of Ms. Bhattachajee has been finally determined by the Appellate Division of the Supreme Court of Bangladesh, or whether the Government's appeal against the High Court Division's decision of reinstatement is still pending. If the case is still pending, the Committee requests the Government to provide it with a copy of the decision once it is issued and to keep it informed in this regard.

27. In relation to the warnings issued to the ten union officials, the Committee notes that it has not been provided with any further details and once again urges the Government to give appropriate directions to the management of the Shahid Sorwardi Hospital so that these warnings are withdrawn, and to keep it informed in this respect.

Case No. 2156 (Brazil)

28. At its June 2004 meeting, the Committee requested the Government to send it a copy of the decision handed down regarding the murder of trade union leader Carlos Alberto Oliveira Santos (see 334th Report, para. 17).

29. In a communication dated 24 August 2004, the Government states that, once the decision regarding the murder of trade union leader Carlos Alberto Oliveira Santos has been handed down, it will be sent to the Committee. The Government encloses extensive documentation on the development of the legal proceedings, from which it emerges that those having participated in the crime, including the perpetrator, have been identified and detention orders have been issued.

30. The Committee takes note of this information and awaits the decision to be handed down regarding the murder of trade union leader Carlos Alberto Oliveira Santos.

Case No. 2047 (Bulgaria)

31. The Committee last examined this case at its meeting in June 2004 when it requested the Government to keep it informed of developments concerning the procedure of determining representativeness of workers' and employers' organizations, provided for in Ordinance No. 64/18, adopted on 11 July 2003 and which entered into force on 21 October 2003 (see 334th Report, paras. 22-24).

32. In a communication dated 14 July 2004, the World Confederation of Labour (WCL) and its affiliate, the Association of Democratic Trade Unions (ADS), submitted additional information. Generally, the complainants indicate that during the first years of the political transition, proper conditions were set up for building a trade union environment respectful of trade union pluralism. Nevertheless, over the last years, there have been growing signs and acts against such pluralism. Official policies, practices and decisions, often implemented in total disrespect of sentences coming from the national courts, continue to pave the way for the total marginalization of most of the trade unions, including the ADS and the National Trade Union (NTU, previously known as PROMYANA). Single representativity of the workers' voice in the hands of few (two) trade unions continues to be promoted. The complainants then explain more specifically the manner in which other trade unions have effectively been barred from exercising basic trade union rights. They refer to: (1) the fact that representation of trade unions in the National Tripartite Council (NTC) was based on the procedure set out in Decree No. 41 of 1998 relating to the procedure for determining the representative organizations of workers and of employers, despite matters raised by the Committee in this respect and a High Court judgement abrogating the decree; (2) the eternal nature of collective bargaining agreements that had been mostly signed by the former communist trade unions and were not renewed until 2001, at which time the new trade unions were still excluded from concluding new agreements; (3) the unfair distribution of trade union assets and property after the Communist era; (4) the exclusion of the new trade unions from social dialogue since 2000. According to ADS, the total membership of the five new trade unions reaches 2.8 million people, that is, 70 per cent of the working population; yet they are still not recognized.

33. The complainants state that until 31 January 2003 only the Confederation of Independent Trade Unions in Bulgaria (CITUB) and the Confederation of Labour "Podkrepa" were recognized as representative on a national level; the decision of the Council of Ministers from 18 January 1999 having excluded the other trade unions from participation in the social dialogue. Thus, the Government had not heeded the judgement of the Supreme Administrative Court which had declared illegitimate the additional standards developed for counting trade union membership and upon which that Council of Ministers' decision was based. The complainants add that the periodical verification of representativeness of trade unions (every three years) was not observed either.

34. As regards the recently adopted Ordinance No. 64/18 which sets out representativeness criteria for workers' and employers' organizations, the complainants point out that its terms provide that only organizations acknowledged as representative should submit the documents necessary for the certification of their representativeness. The ADS and NTU thus wrote to the Ministry of Labour and Social Policy for clarification as to whether they might submit for certification. The complainants attached the reply from the Vice-Minister of Labour and Social Policy dated 17 September 2003 informing them that, while ADS had been recognized by decision of the Council of Ministers in 1997, that decision was subsequently revoked by the Council in 1999 in respect of ADS and of other workers' organizations. Thus, ADS is not recognized as representative at the national level and the Ordinance does not apply to them or to other workers' organizations whose representativeness had been repealed by the Council of Ministers. In this way, these workers' organizations have been barred from submitting for determination of their representative status on the basis of an earlier decision that had illegally denied them that status. This also explains the reason why ADS and NTU did not submit their documents to the authorities as the Government indicated earlier in its communication of 11 July 2003.

35. The complainants emphasize that, as a result of the approach taken by the Government, only the CITUB and "Podkrepa" are allowed to participate on the supervisory bodies of the National Insurance Institute and the National Health Insurance Fund. In addition, while there was larger trade union representation on the National Council for the European Social Charter, this Council was recently replaced by the Economic and Social Council, which considerably limits the representation of trade unions and upon which ADS is not included.

36. Taking into account all of the above considerations, the complainants express their desire for: (1) the acceleration of the preparation of the law on trade unions, with equal participation for all trade union confederations, so that the issue of representativeness criteria may be settled in conformity with regional legislation and international principles; (2) the fair distribution of state assets to all existing trade unions; (3) the promotion of the right to sign collective agreement to all trade unions; and (4) the participation and effective consultation of all trade unions in social dialogue, in particular, in the Economic and Social Council.

37. In its communication dated 16 August 2004, the Government provides information on the results of the trade union poll carried out at the end of 2003 on the basis of the Ordinance adopted by the Council of Ministers Decree No. 152 of 2003 (promulgated as Ordinance No. 64 and subsequently amended by a Supreme Administrative Court Judgement No. 9121 of 2003). As a result of this poll, a new employers' organization, Employers Association of Bulgaria, was acknowledged as representative at national level.

38. In a communication dated 19 October 2004, the Government replies to the additional observations made by the complainants. Firstly, the Government recalls the provisions of Ordinance No. 64 relative to the situations in which criteria for representativeness shall be identified. The Government states that section 1 of the Transitional Provisions of the Council of Ministers Decree No. 152 promulgating the Ordinance provides that the workers' and employers' organizations which have been recognized as representative at national level by a Council of Ministers Decision shall submit to the Council of Ministers the necessary documents for identifying the presence of criteria for representation up to 15 October 2003. The Council of Ministers keeps the representatives of those organizations which, by that time, have been recognized as representative for a period of three months after the expiration of the term in which the necessary documents for identifying the presence of criteria for representation should be presented. The Government states that the NTU appealed this provision before the Supreme Administrative Court.

39. According to the Government, the Supreme Administrative Court agreed that section 1 of the Transitional Provisions initiated a procedure on section 36(a), paragraph 2, of the Labour Code for verification of the pre-existing nationally representative trade unions and employers' organizations. Thus, the complainant did not have the capacity of a representative trade union at national level and could not take part in the National Council for Tripartite Cooperation, nor could it be a party to collective bargaining at sectoral, branch or municipal level. On the other hand, the complainant can make a request before the Council of Ministers on the grounds of section 36, paragraph 2, of the Labour Code to be recognized as a representative organization at national level, after the submission of necessary documents for identifying the presence of the relevant criteria. The Court concludes that by the adoption of this Ordinance through Decree, the Council of Ministers exercised its competence on section 36, paragraph 1, of the Labour Code to determine the procedures for identifying the presence of criteria for representation and in this sense the aim of the law has been achieved.

40. The Supreme Administrative Court also ruled that, according to section 36(a), paragraph 1, the trade union and employers' organizations recognized as representative shall identify their representation within a three-year period after their recognition under section 36, paragraph 2. For those trade unions that were acknowledged as representative before the adoption of the new sections 36 and 36(a), the three-year period commences from the date of entry into force of these provisions, that is 31 March 2001.

41. In reply to the complainants' allegations that the Labour Code contains certain provisions favouring certain trade union organizations, the Government asserts that these allegations are unwarranted and recalls that social dialogue at the enterprise level may be implemented with all workers' organizations, regardless of whether they are recognized as representative at national level. In conclusion, the Government affirms that social dialogue is applied both in the development of labour standards and in the process of their implementation and is thus one of the essential principles of the operative labour law and labour relations in Bulgaria.

42. As regards the complainants' request that the preparation of the law on trade unions should be accelerated so as to address the issue of representativeness criteria, the Government considers that the draft law should be elaborated by the trade unions themselves, without state intervention. In addition, the Labour Code determines the criteria for representation. The NTU and ADS have had the possibility to apply before the Council of Ministers for recognition of representativeness at national level under section 36, paragraph 2. In August 2004, two organizations - the Association of Industrial Capital in Bulgaria and the Association of Trade Unions in Promyana Alliance - applied to be recognized under the established procedure.

43. The Committee takes due note of the information provided by the complainants and by the Government. The Committee recalls that, during its first examination of this case in March 2000, the Government, having acknowledged that the representativeness criteria in question at the time (set forth in Decree No. 41) had been repealed by the High Court, expressed its willingness to conduct a poll to determine whether ADS and PROMYANA satisfied the long-established criteria set forth in the Labour Code. The Committee thus requested the Government to undertake a poll of these two unions and to keep it informed of developments in this respect.(see 320th Report, paras. 359 and 360). The Government indicated in reply that it had filed an official proposal for counting to PROMYANA and ADS, but ADS subsequently informed the Committee that a poll of trade union membership had never been conducted in Bulgaria, nor was there any law providing for trade union elections to determine representativeness. Noting the Government's continued willingness to conduct such a poll, the Committee urged it to take the necessary measures in this respect rapidly (see 326th Report, paras. 27-30). Subsequently, the Government referred to amendments being prepared to the Labour Code that would regulate the establishment of criteria for representativeness of workers' and employers' organizations and stated that an invitation would be addressed to the parties in order to conduct a poll once these amendments had been adopted (see 329th Report, paras. 25-27 and 330th Report, paras. 21-23).

44. The Committee thus notes with concern that since the time of filing of this complaint in 1999, the Government has still not taken the necessary measures to conduct a poll to determine the representativeness of ADS and PROMYANA (now the NTU). While the Government asserts that these organizations have had the possibility to apply to be recognized as representative at national level under section 36, paragraph 2, the information provided by both the Government and the complainants, as well as the letter from the Deputy Minister of Labour to ADS stating that section 2, paragraph 1, of the Decree does not refer to ADS or to other workers' organizations whose representativeness at national level has been repealed by the Council of Ministers and the fact that this letter does not indicate the avenues which should be taken to ascertain such status, demonstrate that the access to established mechanisms for determining representativeness are far from evident.

45. In these circumstances, the Committee urges the Government to initiate the necessary measures immediately so that ADS and the NTU may establish whether they meet the requirements for obtaining representative status at national level. It further requests the Government to indicate whether the two organizations that applied for recognition at the national level in August 2004 have been granted this status and to keep it informed of developments in respect of any requests for recognition. In addition, the Committee wishes to recall that ILO technical assistance is available to the Government in respect of matters relating to the determination of representative workers' and employers' organizations and other matters raised in this case, should it so desire.

Case No. 2097 (Colombia)

46. At its June 2004 meeting, the Committee made the following recommendations with regard to the issues that remained outstanding (see 334th Report, para. 380):

- With respect to the allegations of violations of trade union rights at the enterprise AVINCO S.A., submitted by the National Trade Union of Workers of AVINCO S.A. (SINTRAVI), related to the pressure put on workers to conclude a collective agreement bypassing the trade union, the subsequent withdrawal of non-statutory benefits from unionized workers and the pressure put on workers to make them leave the trade union, the Committee highlights the seriousness of these allegations and once again urges the Government to conduct an inquiry into the alleged facts and, depending on the conclusions reached by the inquiry, to state which legal channels the trade union can use to protect its rights. The Committee requests the Government to keep it informed in this respect. The Committee requests the Government to take the necessary measures to adapt the legislation and the legal procedures in conformity with Conventions Nos. 87 and 98.

- Concerning the dismissal of Mr. Héctor de Jesús Gómez, former trade union official and trade unionist of the Trade Union of Workers of "Cementos del Nare S.A." (SINTRACENARE), on 25 May 1995, the Committee requests the Government to take the necessary measures to ensure that the enterprise fully complies with article 13 of the collective agreement and pays Mr. Héctor de Jesús Gómez the corresponding compensation plus an additional 12 per cent, and to keep it informed in this respect.

- With regard to the allegations submitted by the Single Confederation of Workers of Colombia (CUT), Antioquia Executive Subcommittee, and the Union of "Official" Workers and Public Employees of the General Hospital of Medellín, the Committee requests the Government to promote collective bargaining at the General Hospital of Medellín without delay and to keep it informed in this respect.

47. In its communication dated 1 September 2004, the Government, referring to the allegations made regarding the enterprise AVINCO S.A., says that it will send appropriate instructions to the Territorial Directorate of Antioquia requesting an administrative inquiry, as and when necessary. Concerning the dismissal of Mr. Héctor de Jesús Gómez, former trade union official and trade unionist of the Trade Union of Workers of "Cementos del Nare S.A." (SINTRACENARE), the Government states that, once the enterprise pays Mr. Héctor de Jesús Gómez's aforementioned compensation, it will transmit copies of the relevant documents.

48. As to the allegations concerning the General Hospital of Medellín, the Government reiterates what was previously said regarding collective bargaining for public employees, citing decision C-201 of 19 March 2002, handed down by the Constitutional Court, which states that the restriction of the right of trade unions representing public employees to collective bargaining is legal and which refers to article 416 of the substantive Labour Code.

49. The Committee awaits the outcome of the administrative inquiry into the allegations regarding the enterprise AVINCO S.A. and the documents proving that the former trade union official, Mr. Héctor de Jesús Gómez, has received the compensation envisaged in the collective agreement. As to the Committee's previous recommendation requesting that the Government promote collective bargaining at the General Hospital of Medellín, the Committee regrets the fact that the Government has not reported any measure in this respect, limiting itself to citing the jurisprudence of the Constitutional Court to the effect that the restriction of the right of trade unions representing public employees to collective bargaining is legal. In this respect, the Committee underlines that Colombia has ratified Conventions Nos. 98 and 154 and therefore has an obligation to recognize public employees' right to collective bargaining. The Committee requests the Government to take clear measures to promote collective bargaining at the General Hospital of Medellín and to modify the legislation into full conformity with Conventions Nos. 98 and 154. The Committee also reminds the Government of its previous recommendation, in which it requested it to take measures to adapt the legal procedures into conformity with Conventions Nos. 87 and 98.

Case No. 2151 (Colombia)

50. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 37-40). On that occasion the Committee made the following recommendations regarding the issues that remained outstanding:

The Committee 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 (SINDICONSEJO), the enterprises or institutions in question requested judicial authorization, as required in the legislation.

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.

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 sector, 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.

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.

As regards the allegations relating to the dismissal of SINTRABENEFICENCIAS officials for setting up the 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.

51. In its communications of 9 and 13 June 2004, the National Trade Union of Public Servants of Provincial Governments (SINTRAGOBERNACIONES) refers to the recommendation made by the Committee in the present case, in which the Government was urged to take measures to ensure that the required consultation with the corresponding trade union organizations be carried out within the restructuring process and alleges that the Governor of the Department of Cundinamarca failed to comply with this recommendation, presenting a draft bylaw to the Departmental Assembly (a copy of which is sent in an annex) with the aim of modifying the Basic Statute of the Public Administration of Cundinamarca and reorganizing the structure of the Departmental Administration, without having attempted to come to an agreement with the workers or having consulted them.

52. In its communications of 14 May and 1 September 2004, the Government sends further observations. With regard to the dismissal of trade union officials of the Institute for Urban Development (IDU), SINDISTRITALES and SINTRASISE, the Government states that the complainant organization must provide the names of the individuals affected, as well as their positions within the Executive Committee of the trade union, and the date of the facts, in order that they may be identified and their cases dealt with. As for the IDU, the Government states that on 27 March 2001, 188 out of 671 posts were eliminated as a result of reorganization of personnel. Ten cases of suspension of trade union immunity concerning public servants who had that immunity when the staffing changes were passed were backed by the IDU. In six of them the decision went against the IDU, one case was withdrawn and three cases remain outstanding.

53. As regards the dismissal in 2001 of the Executive Committee of the Trade Union of Employees of the District of Bogotá (SINDISTRITALES) by the District Administration, the Government states that, based on Resolution No. 883 of 31 March 2004, which grants the members of the Executive Committee of SINDISTRITALES of the Ministry of Education of Bogotá D.C. trade union leave, it has been verified that Luis Eduardo Cruz, Chairman of SINDISTRITALES, Orlando Castillo, Secretary-General of the same organization and Elizabeth Lozano, Secretary of Solidarity have not been dismissed and, on the contrary, as stated in the very same resolution, are on permanent and paid trade union leave, in the case of the Chairman and the Secretary-General, and temporary trade union leave in the case of the Secretary of Solidarity. As for Carmen E. Quitián, member of the Executive Committee of the Trade Union, the Government reports that she has not been dismissed either and currently benefits from trade union immunity and is attached to the Office of the Controller of the Capital District, according to a payslip dated 30 April 2004.

54. As regards the trade union officials of SINTRASISE, the Government states that the Centre for Systematisation and Technical Services for the Capital District "SISE", was put into liquidation for technical reasons and its workers laid off with the corresponding compensation payments which took place according to the law. The Government also states that the Centre for Systematisation and Technical Services for the Capital District "SISE" presented the Labour Circuit Court for Bogotá with a special request for dissolution, liquidation and cancellation, as established in Article 380 of the Substantive Labour Code (CST), against the Trade Union of Official Workers of the District Centre for Systematisation and Technical Services (SINTRASISE) with first grade legal status (title no. 7064 of 19 December) in the enterprise because the number of its affiliates had been reduced to less than 25. The Labour Division of the District Court of Bogotá, confirmed the ruling handed down by the Eighteenth Labour Circuit Court, which in its decision dated 19 September 2001, stated that "SINTRASISE falls under the grounds for dissolution set out in subsection (d) of article 401 of the Substantive Labour Code" and ordered the cancellation of the Trade Union's inclusion in the register of trade unions. As a consequence, the Ministry of Labour decided to remove SINTRASISE from the register of trade unions. SINTRASISE presented an action for protection of constitutional rights that was rejected by the Eighteenth Civil Circuit Tribunal of Bogotá, with that decision being confirmed by the Civil Chamber of the Superior Court of Bogotá D.C., in a ruling dated 17 August 2001. The Government encloses the aforementioned resolution and decisions in an annex to its observations.

55. As to the refusal of trade union leave and further dismissals of SINTRASISE trade union officials working in the Ministry of Transport, the Government states that SINTRASISE was the Trade Union of Workers of the District Centre for Systematisation and Technical Services "SISE", the district body which was put into liquidation and no individuals working in the Ministry of Transport belonged to that trade union.

56. As to the allegations regarding the mayor of Bogotá's refusal to bargain collectively, and the lack of regulations governing the right to collective bargaining in the public service, the Government is pleased to announce the adoption of Decree No. 137 of 29 April 2004 (sent in an annex), through which the District Committee for Labour Dialogue and Coordination has been established as a coordinating body for labour issues related to public servants of the Capital District. The aforementioned committee is made up of workers and public servants of the Capital District, alongside representatives of organizations, federations and trade unions whose members may be public servants of the District. As a part of its work, the Committee has already carried out the negotiation and coordination of the increase in wages of the public employees of the Capital District, within the framework of the policy of dialogue of that administration and the participation of trade union organizations on issues which are of great importance to the interests of the workers. This agreement will be applied to around 17,000 workers linked to the Capital District within its different bodies. Within the framework of the policy of coordination and dialogue with trade union organizations, the Capital District also agreed to the creation of a forum for dialogue with the Union of Public Servants of the Districts and Municipalities of Colombia (UNES), with the aim of jointly analysing the successive pronouncements of the Committee on Freedom of Association.

57. With regard to the alleged non-compliance with trade union agreements, the Government states that Decree No. 1919 of 2002 was issued by the President of the Republic and is binding on all territorial entities, including the Capital District. The aforementioned Decree led to the suspension of pay for the so-called five-year period that had been awarded to public servants of the Capital District in recognition of services rendered for periods of five years of service. Decree No. 1919 was called into question on several occasions before the Council of State and this high court is currently considering a ruling with regard to this issue.

58. As to the dismissal of trade union officials belonging to the Institute for Urban Development (IDU), the Committee notes that the Government states that the IDU has brought ten cases of suspension of trade union immunity: in six cases the decision went against the IDU, one case was withdrawn and three cases remain outstanding. The Committee expects that those trade union officials who win their cases will be effectively reinstated.

59. The Committee notes, with regard to the dismissal in 2001 of the Executive Committee of SINDISTRITALES, that the four members of the committee have not been dismissed, and on the contrary, three of them benefit from permanent or temporary paid trade union leave and the fourth is covered by trade union immunity. The Committee takes note of this information.

60. As to the SINTRASISE trade union officials, the Government states that the Centre for Systematisation and Technical Services for the Capital District "SISE" was put into liquidation for technical reasons and, as a consequence, its employees were made redundant with compensation. The Government also states that the enterprise Centre for Systematisation and Technical Services for the Capital District "SISE" lodged a special complaint with the Labour Circuit Court for Bogotá, requesting the dissolution of SINTRASISE, because its affiliates had been reduced to less than 25. The Court upheld the complaint and its ruling was confirmed by the District Court which ordered the cancellation of the registration of the trade union. SINTRASISE presented an action for protection of constitutional rights that was rejected. The Committee takes note of this information.

61. As to the refusal of trade union leave and further cases of dismissal involving trade union officials belonging to SINTRASISE and working in the Ministry of Transport, the Committee notes that the Government has not yet transmitted the requested copies of the appeals for reversal and motions of appeal. The Committee does, however, note the fact that the Government states that SINTRASISE was the Trade Union of Workers of the District Centre for Systematisation and Technical Services "SISE", a body which was put into liquidation as mentioned above, and that no individuals working in the Ministry of Transport belonged to that trade union.

62. As to the allegations regarding the mayor of Bogotá's refusal to negotiate collectively and the lack of regulation concerning the right to collective bargaining within the public service, the Committee notes with interest the adoption of Decree No. 137 of 29 April 2004 on the creation of the District Committee for Labour Dialogue and Coordination, established as a coordinating body for labour issues related to public servants of the Capital District. The Committee also notes that, as a first result of the District Committee's functioning, the increase in wages of the public employees of the Capital District has been agreed upon. Moreover, the Committee notes the creation of a forum for dialogue with the Union of Public Servants of the Districts and Municipalities of Colombia (UNES), with the aim of jointly analysing the successive pronouncements of the Committee on Freedom of Association. The Committee requests the Government to continue to keep it informed of the progress made in the area of collective bargaining in the public sector within the Capital District, as well as of any new agreements which might be reached. Taking into account the fact that it has examined various cases involving difficulties linked to collective bargaining in other areas of the public sector, the Committee hopes that similar measures will be adopted in those areas.

63. 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 notes that the Government states that Decree No. 1919 was called into question on several occasions before the Council of State and this high court is currently considering a ruling with regard to this issue. The Committee requests the Government to keep it informed as to the results of these proceedings once the rulings have been handed down.

64. As to the allegations regarding the dismissal of trade union officials belonging to SINTRABENEFICENCIAS for having formed a trade union organization in the Cundinamarca district, on which the Territorial Directorate of Cundinamarca was to issue the corresponding decision against the background of the administrative inquiry that has been initiated, the Committee requests the Government to provide it with a copy of this decision.

65. The Committee notes that the Government has not transmitted information on the suspension of the trade union immunity of the trade union officials dismissed from the Bogotá Council (SINDICONCEJO), and the allegations of SINTRAGOBERNACIONES regarding the failure to consult with the trade union during the preparation of a draft bylaw aimed at modifying the Basic Statute of the Public Administration of Cundinamarca and reorganizing the structure of the Departmental Administration and requests the Government to transmit its observations in this respect. The Committee notes that a new communication of the Government was received on the eve of its meeting. It will examine the information contained in this communication when it next examines this case.

Case No. 2237 (Colombia)

66. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 41-43). On that occasion, The Committee noted that the text of Decision No. 000759 issued by the territorial directorate of Atlántico, implied that there was 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 had no other facts at its disposal, it requested the Government to ensure that workers at the enterprise were not discriminated against with regard to wages because of their trade union membership, and to keep it informed of any steps taken in this respect.

67. In its communications of 17 July and 19 August 2003, the complainant sent new allegations. Basically, it alleges that the employers have made use of new methods of recruitment; firstly, through temporary employment agencies and now through workers' cooperatives, in order to obstruct freedom of association, the right to present petitions and the right to strike. In particular, in the case of the enterprise Fabricato Tejicondor, it is alleged that, following the merger of these two enterprises, there was a violation of the law regarding the establishment of a single collective agreement for all the workers. The employers refuse to discuss the petition legally presented by SINALTHAHIDITEXCO in May 2003. The are using contracts drawn up with workers' cooperatives (1,500 workers out of a total of 5,402 belong to cooperatives). The complaint also alleges that temporary employment agencies and workers' cooperatives have been employed in connection with new labour contracts in the enterprises Coltejer and Textiles Rionegro. The complainant also alleges that in the case of the enterprise Riotex, part of the Fabricato group, unionized workers have not benefited from the 7.49 per cent rise since 16 July 2003 and that, of a total of 540 workers, over 300 belong to cooperatives. The complainant organization alleges that there is victimization and anti-trade union discrimination within the enterprise Leonisa, as well as violation of collective bargaining and the use of contracts drawn up with cooperatives. Finally, the complainant organization alleges that, within the enterprise Everfit-Indulana, contracts are drawn up with cooperatives and unionized staff members are subject to victimization.

68. In its communication dated 12 May 2004, in relation to the enterprise Fabricato Tejicondor and the establishment of a collective labour agreement in order to facilitate the merger of the two enterprises, Fabricato and Tejicondor, the Government states that, in accordance with article 38 of Decree No. 2351 of 1995, any collective labour agreement entered into with a trade union which counts more than one-third of the workforce of an enterprise amongst its membership is extended to cover all staff members, including, of course, both the members of the main trade union signatory to the agreement and the members of the less representative trade unions, as well as those non-unionized staff members. In accordance with the information provided by the enterprise, the main trade union is SINDELHATO, to which over 50 per cent of the workforce belongs, whilst SINALTHAHIDITEXCO and the Clothing Workers' Trade Union of Colombia (SINTRA IL) have many fewer members, not even representing one-third of the workforce. The Government argues that, as a consequence, the collective agreement in force within the enterprise is that which was signed with SINDELHATO, and which expires in April 2005. This is why the allegation regarding the refusal to accept the SINTRA IL petition is inconsistent. The Government also states that the Committee of Experts has not made any observations whatsoever with regard to the aforementioned Decree.

69. As to the signing of service contracts with workers' cooperatives in the various enterprises cited by the complainant, the Government states that, through Ruling C-211 of March 2001, the Constitutional Court stated that:

... workers' cooperatives belong to the specialized category and have been defined by the legislator in the following terms: workers' cooperatives are those which organize the labour capacity of their members for the production of goods, carrying out of work or the provision of services. Members mainly contribute to this kind of organization in terms of their labour, given that contributions in the form of capital are minimal. (...) There is no subordination relationship between associates. In a social democracy such as ours, in which labour and solidarity play a vital role in achieving a just social and economic order, organizations based on association and solidarity enjoy full constitutional backing. (...) It is not only contractual labour activity that is covered by the basic right to work. Free, non-contractual labour, carried out independently by individuals, falls within the core of the basic right to work.

The Government states that, as a consequence of the Constitutional Court's statement, it is clear that workers' cooperatives should be accorded the same legal and constitutional protection as contractual labour, perhaps more given that the principle of solidarity between their members is put into practice (a principle far removed from labour law). The cooperative members are their own bosses and their system of payment is as legitimate as that envisaged by the Labour Code with regard to contractual labour. In its communication of 1 September 2004 sent as part of Case No. 2239, which also deals with cooperative workers, the Government adds that cooperatives in Colombia have their own organization for the defence of their rights and interests, i.e. the National Confederation of Cooperatives (CONDEFECOOP). The Government emphasizes that only employers and persons who are party to an oral or written work contract may organize in trade unions. Other persons who exercise activities that are not undertaken under a work contract may organize in other type of associations, as guaranteed by article 38 of the Political Constitution.

70. As to the wage increase within the enterprise RIOTEX which, according to the corresponding allegation, was not extended to unionized workers, the Government states that the enterprise has confirmed that the wage increase, of 8 per cent, was applied to all workers, both unionized and non-unionized. As to the allegation that 300 of the 450 workers are members of cooperatives, the Government states that this situation is in accordance with the provisions of the Political Constitution and the aforementioned declarations of the Constitutional Court.

71. With regard to the allegations of anti-trade union victimization and violation of the collective agreement within the enterprise Leonisa, the Government argues that those allegations are too general in nature and that the complainant organization should be more specific in order that the Government can answer its claims. As to the allegations regarding the enterprise Everfit-Indulana, the Government reiterates that the allegations are not specific and that the complainants should take their case to the national authorities before turning to the ILO.

72. As to the allegation regarding the signing of service contracts with workers' cooperatives in the various enterprises mentioned by the complainants (Fabricato Tejicondor, Coltejer and Textiles Rionegro, Riotex, Leonisa, Everfit-Indulana), and therefore obstructing freedom of association, the right to present petitions and the right to strike, the Committee notes that the Government states that the Constitutional Court announced that both contractual labour and labour carried out on an independent basis by individuals are protected by the basic right to work. According to the Government, as a consequence it is clear that workers' cooperatives should be accorded the same legal and constitutional protection as contractual labour, their members being their own bosses and their system of payment being as legitimate as that envisaged by the Labour Code with regard to contractual labour. The Committee notes, however, that the Government states that only employers and persons bound by a written or verbal labour contract may organize in trade unions and that other persons may organize in other types of associations. Taking into account the information provided by the Government, and mindful of the particular characteristics of cooperatives, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as "workers' organizations" within the meaning of Article 10 of Convention No. 87, that is organizations that have as their objective to promote and defend workers' interests. That being so, referring to Article 2 of Convention No. 87 under which workers and employers have the right to establish organizations of their own choosing, the Committee recalls that the concept of worker means not only salaried worker but also independent or autonomous worker. The Committee considers that workers associated in cooperatives should have the right to establish and join organizations of their own choosing. The Committee therefore requests the Government to take the necessary measures to amend the legislation accordingly, and to keep it informed of developments in this respect.

73. Concerning the allegations regarding the establishment of a single collective agreement within the enterprise Fabricato Tejicondor, the Committee notes that the Government states that article 38 of Decree No. 2351 of 1995, providing that any collective labour agreement entered into with a trade union which counts more than one-third of the workforce of an enterprise amongst its membership is extended to all staff members. According to the Government, the main trade union is SINDELHATO, to which over 50 per cent of the workforce belongs, whilst SINALTHAHIDITEXCO and the Clothing Workers' Trade Union of Colombia (SINTRA IL) together have many fewer members; as a consequence, the collective agreement in force within the enterprise is that which was signed with SINDELHATO, and which expires in April 2005.

74. As to the allegation that within the enterprise Riotex, a part of the Fabricato group, unionized workers have not benefited from the 7.49 per cent rise since 16 July 2003, the Committee notes that, according to the Government, the enterprise has announced that the wage increase was of 8 per cent and was applied indiscriminately to all workers. The Committee request the Government to carry out an inquiry into the matter and, should the allegation be substantiated, to ensure that unionized workers be paid the appropriate sum owed and to keep the Committee informed in this respect.

75. Regarding the allegations of anti-trade union victimization and violation of the collective agreement within the enterprises Leonisa and Everfit-Indulana, the Committee notes the Government's statements on the overly general nature of the allegations and invites the complainant to send more detailed information in this respect.

76. Finally, the Committee requests the Government to keep it informed as to the measures adopted to prevent any discrimination regarding staff working at the Hilazas Vanylon Enterprise S.A.

Case No. 2297 (Colombia)

77. At its May-June 2004 meeting, the Committee made the following recommendation (see 334th Report, para. 407): with regard to the restructuring carried out at the General Directorate of Taxation Support of the Ministry of Finance and Public Credit, with the dismissal of 350 employees shortly after the Directorate was established and workers were transferred to it from other departments of the Ministry of Finance, 80 per cent of those workers being members of the Trade Union of the Ministry of Finance and Public Credit, including the executive committee, the Committee requests the Government to take steps to ensure that an investigation is carried out to determine the alleged anti-union nature of this restructuring, and to keep it informed in this respect.

78. In a communication dated 16 June 2004, the Trade Union of Communication Workers (USTC) sent new information.

79. In its communication dated 1 September 2004, the Government states that the Ministry of Finance and Public Credit indicates that the restructuring was carried out in accordance with legal and regulatory standards and explains that:

- Decree No. 1660 of 1991 established the special systems for retirement from service, through financial compensation, applicable to, amongst others, the employees or public employees of the Executive Branch of the Administration.

- In accordance with article 7 of the aforementioned decree, when developing personnel programmes, bodies may adopt collective retirement plans with compensation, aimed at career staff or staff subject to free appointment and dismissal.

- The provisions on the organizational structure of the General Directorate of Taxation Support, established in Decree No. 1642 of 1991, require the hiring of new staff to carry out the functions referred to in the aforementioned decree.

- In accordance with the terms of article 7 of Decree No. 2100 of 1991, the Higher Council on Fiscal Policy (CONFIS) agreed that the Collective Plan for Retirement with Compensation designed for the General Directorate of Taxation Support was adequate from a financial and fiscal point of view.

- In Resolution No. 00101 of 1992, a collective retirement plan with compensation was adopted for the General Directorate of Taxation Support of the Ministry of Finance and Public Credit.

- Through Resolutions Nos. 486, 487, 835, 836, 868, 885, 887, 888 and 890 of 1992, applications for voluntary retirement on the part of some public employees of the General Directorate of Taxation Support were accepted.

80. As to the fact that, at that time, a certain number of public employees belonged to a trade union-type organization, the Government states that the Ministry of Finance holds that its acceptance of each of the applications for voluntary retirement was in line with the legal and regulatory labour standards covering such cases. At no time was there any violation of the rights those individuals held as public employees.

81. The Committee takes note of this information and requests the Government to inform it if, following the alleged dismissals and transfers, any legal action is taken as a consequence of anti-trade union discrimination within the framework of the restructuring process being carried out within the General Directorate of Taxation Support of the Ministry of Finance and Public Credit. Should any such legal action be taken, the Committee requests the Government to transmit the results of that action. The Committee also requests the Government to transmit its observations regarding the communication of the USTC, dated 16 June 2004.

Case No. 2227 (United States)

82. The Committee last examined this case at its meeting in November 2003 when it invited the Government to explore all possible solutions, in full consultation with the social partners concerned, with the aim of ensuring effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision and to keep the Committee informed of the measures taken in this regard (see 332nd Report, paras. 551-613).

83. In a communication dated 27 May 2004, the Government provided information concerning further endorsements and clarifications by the National Labour Relations Board (NLRB) in respect of the impact of the Hoffman decision on unfair labour practices complaints. In particular, the NLRB has endorsed its general counsel's view that, although Hoffman precludes an award of back pay to undocumented workers for work that was not performed, it does not preclude a remedial award of back pay for work that was performed but at improper wages. The NLRB also reaffirmed its prior practice of generally confining issues regarding an individual's immigration status to the compliance phase of its proceedings, indicating that the status of a complainant, in most cases, is irrelevant to a respondent's unfair labour practice liability under the NLRB. Finally, the NLRB addressed its "conditional reinstatement" remedy, a pre-Hoffman remedy, directing the reinstatement of an undocumented worker on condition that he or she produce proof of eligibility to work within a "reasonable time", if the employer knew when it hired the "discriminatee" that he or she was undocumented. Although the NLRB acknowledged that determining the propriety of such a remedy should be left for the compliance phase, it suggested that the remedy remains appropriate.

84. The Government further reiterates that the Hoffman decision has not affected the enforcement of other laws governing the employment relationship (except where there are issues of back pay for work not performed) and that federal and state case law continue to interpret the Hoffman decision narrowly. In addition, the Government indicates that, pursuant to the United States-Mexico Joint Ministerial Statement on this matter in April 2002, consultations have identified issues for collaboration based on the resolve of both Governments to enforce applicable labour laws for all workers, including immigrant workers, and have resulted in United States Department of Labor initiatives to inform migrant workers about applicable labour protections under United States laws.

85. In conclusion, the Government states that the case law since the Hoffman decision has confirmed that the decision is not wide ranging in that it only affects the remedy of back pay for work not performed. The Government reiterates that discrimination against undocumented workers for union activity remains illegal and emphasizes that it continues to take steps to alleviate concerns that the decision will be applied beyond its intended scope.

86. In a communication dated 8 October 2004, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) provided follow-up information in respect of this case. In particular, the AFL-CIO alleges that employment law in the wake of Hoffmann remains in flux and immigrant workers' rights remain highly at risk. The AFL-CIO gives a number of examples, including various state judicial rulings, to support its statement. Finally, the AFL-CIO states that the Government has not amended the relevant statute, the Immigration Reform and Control Act, nor has it consulted with the social partners on ways to bring the legislation into conformity with freedom of association principles, as had been recommended by the Committee.

87. The Committee takes due note of the information provided by the Government. It further notes the comments made by the complainant organization and requests the Government to transmit its observations thereon. Recalling its conclusion that the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers are inadequate to ensure effective protection against acts of anti-union discrimination, the Committee regrets that the Government has not provided any information on measures taken to explore possible solutions, in full consultation with the social partners concerned, aimed at redressing this inadequacy. It therefore requests the Government to keep it informed of any measures taken or envisaged in this respect.

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

88. The Committee last examined this case which concerns serious obstacles to the registration of employers' organizations, including the complainant Union of Employers of Macedonia (UEM), in March 2004 (see 333rd Report, approved by the Governing Body at its 289th Session, paras. 56-60). The Committee requested the Government: (1) to provide information on the current status of the UEM and to finalize the registration of the UEM urgently under a status that corresponds to its objectives as an employers' organization; (2) 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; (3) 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.

89. In a communication dated 1 September 2004, the Government indicates that the Ministry of Labour and Social Policy is approaching the final stages of the preparation of a new law on labour relations which will contain provisions related to the procedure for establishing associations of employers. According to the Government, the choice of a partner in the Economic-Social Council will depend on whether these associations fulfil the criteria or not. In any case, the Government supports the process of pluralization in this domain. The Government also states that by decision of the Assembly of the Economic Chamber the previous board of employers within the Chamber held a founding assembly and submitted a request for registration in the register of associations of citizens and foundations. The Court of Original Jurisdiction I-Skopje issued a decision for the registration of the Organization of Employers and gave the organization legal status.

90. The Committee notes with interest that the Government is approaching the final stages of the preparation of a new law on labour relations which will contain provisions on the procedure for establishing associations of employers. The Committee hopes that the provisions of the new law under preparation will fully rectify the current situation, whereby employers' organizations cannot obtain legal personality as there is no procedure for their registration, and requests to be kept informed of steps taken in this respect.

91. The Committee also notes that according to the Government, the previous board of employers within the Economic Chamber held a founding assembly and submitted a request for registration in the register of associations of citizens and foundations. The organization in question was registered and vested with legal personality by a decision of the Court of Original Jurisdiction I-Skopje. The Committee does not have information at its disposal as to whether there is a relationship between the organization which has been registered and the complainant organization, UEM, the registration of which has been pending since 1998. The Committee once again requests the Government 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.

92. The Committee notes that the Government does not provide any information on the exercise by employers' organizations of the right to engage in collective bargaining. It notes that during the first examination of this case, the complainant had alleged that the Government invited to negotiations only the Economic Chamber which was based on compulsory membership of all enterprises and was not registered as an employers' organization. The Committee notes that the Government now indicates that the choice of a partner in the Economic-Social Council will depend on which association of employers fulfils the necessary criteria. The Committee recalls that employers' organizations have the right to engage in free and voluntary negotiations with workers' organizations and requests the Government to promote such negotiations and to refrain from any interference which might alter their free and voluntary character.

Cases Nos. 2017 and 2050 (Guatemala)

93. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 61-70). On that occasion, the Committee made the following recommendations.

- With regard to the La Exacta and/or San Juan El Horizonte farm, the Committee requests the Government to specify whether the amicable agreement signed on 24 October 2003 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.

- 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.

- 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 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.

- 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, Mr. 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, Messrs. 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, Mr. 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.

94. In its letters of 29 April 2004, with respect to the allegations concerning the CARDIZ S.A. company, the Government states that as the company is closed, the conduct and conclusion of the proceedings are suspended.

95. As regards the La Exacta farm, the Government states that the employers' side did not attend the conciliation meeting set for 16 January 2004. Further meetings were arranged on 30 January and 6 and 21 April to initiate dialogue with the company and to try and find a viable solution to the industrial dispute. However, their representatives did not attend those meetings. The summons to the last meeting was subject to a warning that in the event of failure an administrative penalty would be applied to the company.

96. As regards the Ace International case, the Government states that as appropriate evidence was not submitted to the court of first instance, there was no possibility of doing so on appeal. An action for protection (amparo) was entered with respect to the proceedings in the Supreme Court of Justice, but this was ruled inadmissible as it was contrary to due process.

97. As to the Tamport case, the Government states that this is a collective action of a social and economic character conducted by the 5th Secretariat in the Labour and Social Security Court No. 7 in the first economic area, where the plaintiff is the Tamport S.A. Workers' Union and the defendant is the Tamport S.A. company assembly plant. The dispute has three parts: the first concerns the collective dispute and on 15 March 2003, the parties were requested to nominate their representatives. The second concerns an incident of dismissal, the current state being that one of the parties has not complied with the preliminary decision of 7 November 2002. The third part consists of the illegal strike action and, in fact, the proceedings are still in progress.

98. As regards the Hidrotécnia S.A. case, the Government reports that the dispute began in 1997 when the workers formed a trade union, and as soon as the company was informed, it chose to dismiss the workers. In this respect, there is a matter of reinstatement. On 13 January 2004, a memorial was submitted ordering the extension of the embargo based on the certification by the General Property Registrar of the central zone to guarantee the sum owed by the employer in respect of wages. On 24 February 2004, a report was sent to the General Property Register asking whether the precautionary embargo order, which was necessary for reinstatement, had been implemented.

99. Concerning the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Government reports that on 2 February 2004, the Attorney-General's Office requested Lower Court No. 6 for criminal, drug trafficking and environmental crimes to reopen the case in order to continue the investigation. By a decision of 12 February 2004, the examining magistrate reopened the proceedings. The Government states that ballistic tests and information on certain telephone calls have been requested.

100. The Committee observes that the Government states with respect to the CARDIZ S.A. company, that as the company is closed, the conduct and conclusion of the proceedings are suspended. The Committee recalls, however, that the Government had previously reported that the Ministry of Labour had appointed lawyers from the Workers' Defence Service to defend the employees' interests in the collective proceedings in the competent courts. The Committee regrets the time that has elapsed since the start of proceedings in 2000, deplores that the proceedings have been halted and requests the Government to adopt the necessary measures to reopen and expedite these proceedings.

101. As regards the La Exacta and/or San Juan El Horizonte farm, the Committee notes that the Government reports that the new owners did not attend the conciliation meeting set for 16 January 2004 or those arranged subsequently and that the summons to the last meeting was subject to an administrative sanction. The Committee regrets the lack of cooperation by the company's new owners in initiating a dialogue with the workers' representatives and requests the Government to adopt the necessary measures to ensure that the parties engage in a dialogue to resolve the industrial dispute. The Committee observes that the Government has not specified whether the new amicable settlement concluded on 24 October 2003 includes the reinstatement of the dismissed workers in respect of whom the courts had ordered reinstatement and requests the Government it keep it informed in this respect.

102. With regard to the Ace International S.A. assembly plant, the Committee notes the Government's explanations that as appropriate evidence was not submitted to the court of first instance, there was no possibility of doing so on appeal. The Committee observes that although an action for protection (amparo) was entered with respect to the proceedings in the Supreme Court of Justice, it was ruled inadmissible as the application for protection was contrary to due process. The Committee takes note of this information.

103. With regard to the Tamport S.A. company, the Committee had requested 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. The Committee notes the concise information sent by the Government according to which in the proceedings concerning the industrial dispute on 15 March 2003, the parties had been requested to appoint their representatives and requests the Government to inform it of the results of those proceedings.

104. As regards the allegations concerning the dismissal of the founders of the trade union formed in 1997 in the Hidrotécnia S.A. company, the Committee noted the information sent by the Government concerning the judicial process of reinstatement in the course of which, on 13 January 2004 a memorial was submitted ordering the extension of the embargo based on the certification by the General Property Registrar of the central zone to guarantee the sum owed by the employer in respect of wages. On 24 February 2004, a report was sent to the General Property Register asking whether the precautionary embargo order, which was necessary for reinstatement, had been implemented. The Committee regrets the time elapsed since the dismissals and requests the Government to adopt the necessary measures to expedite the proceedings so that the workers can achieve reinstatement in their jobs in the near future without loss of wages or, if reinstatement is not possible, they can receive full compensation.

105. Concerning the murder of Mr. Baudillo Amado Cermeño Ramírez in December 2001, the Committee notes that the Government reports that, in a decision of 12 February 2004, the examining magistrate reopened the proceedings. The Government states that ballistic tests and information on certain telephone calls were requested. The Committee requests the Government to send the decision made in that respect.

106. The Committee regrets that the Government has not sent information on the other questions pending from the last examination of the case and on which UNSITRAGUA has sent new information, and urges the Government to send the requested information and observations without delay:

- 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;

- 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 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;

- with regard to the allegations concerning the kidnapping, assaults and threats against the trade unionists of the Santa María de Lourdes farm, Mr. 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, Messrs. 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 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.

Case No. 2103 (Guatemala)

107. At its November 2003 meeting, when it examined allegations of acts of anti-union discrimination in the Office of the Auditor-General, the Committee made the following recommendations (see 332nd Report, para. 680):

While noting with satisfaction the reinstatement of the trade unionists who had been dismissed, the Committee observes that the Government has not referred specifically to the alleged transfer and subsequent suspension without pay of Mr. Sergio René Gutiérrez Parrilla for exercising the right of petition, or to the alleged compulsory resignations involving the termination of membership of more than 200 union members during the mandate of the previous Auditor-General. However, the Committee notes that the new administration of the Office of the Auditor-General has made a formal commitment to comply with the Committee's recommendations in the present case. The Committee requests the Government to confirm that these problems outlined by the complainants have been resolved.

108. In its communication of 29 April 2004, the Government states that the remaining problems have been satisfactorily resolved and that this was confirmed by Mr. Sergio René Gutiérrez Parrilla, the minutes, agreements and correspondence secretary of the Workers' Union of the Office of the Auditor-General (SITRACGC), and Mr. Nery Gregorio López Alba, General Secretary of the Organization for Worker Unity ("Unidad Laboral"). Both problems were resolved with the new Auditor-General, and thus the reasons for the complaint no longer exist.

109. The Committee notes this information with satisfaction.

Case No. 2187 (Guyana)

110. The Committee last examined this case which concerns various alleged attempts by the Government to weaken the Guyana Public Service Union (GPSU), in November 2003 (see 332nd Report, approved by the Governing Body at its 288th Session, paras. 691-729) and reached the following recommendations on which it requested to be informed of developments:

(a) The Committee notes that the issue of the enforceability of the 1999 Memorandum of Agreement is currently pending before the courts and trusts that in rendering a decision, full account will be taken of the principles according to which agreements should be binding on the parties and the harmonious development of labour relations would be facilitated if the public authorities, when dealing with the problems concerning the workers' loss of purchasing power, adopted solutions which did not involve modifications of agreements without the consent of both parties. The Committee requests the Government to keep it informed of the progress of judicial proceedings and to transmit a copy of the court ruling on this case as soon as it becomes available.

(b) (...)

(c) The Committee calls upon the Government to ensure the exercise of great restraint in relation to any form of interference which might occur in the context of the collection of trade union dues, and to undertake consultations with representative trade unions as soon as possible in order to consider improvements to the current check-off system through the adoption of adequate safeguards against interference. The Committee requests to be kept informed of developments in this respect.

(d) With regard to the deduction of trade union dues, the Committee calls on both parties to implement the High Court ruling of July 2000 on the one hand, by providing written authorizations for the deduction of trade union dues and, on the other hand, by ensuring that such deductions and their payment to the GPSU are carried out promptly and in full. The Committee also invites the Government to undertake consultations with the GPSU without delay in order to forward to the GPSU any contributions made in June and July 2000 which have been retained. The Committee requests to be kept informed of developments in this respect.

(e) The Committee notes that the cases concerning the dismissal of 12 trade union officers and members allegedly on anti-union grounds (Leyland Paul, Bridgette Crawford, Karen Vansluytman, Yvette Collins, Cheryl Scotland, William Blackman, Marcia Oxford, William Pyle, Yutze Thomas, Anthony Joseph, Niobe Lucius and Odetta Cadogan) are pending before the courts and expresses the hope that the judicial proceedings will be concluded soon and will shed light onto the reasons for the dismissals. If it is found that the dismissals were on anti-union grounds, the Committee requests the Government to take all necessary measures to have the trade union officers and members reinstated in their posts without loss of pay. The Committee requests the Government to keep it informed in this respect and to communicate the text of the decisions rendered.

(f) The Committee requests the Government to institute an independent inquiry into the reasons for the dismissal of Barbara Moore and, if it is found that the dismissal was on anti-union grounds, to take all necessary measures to ensure her reinstatement in her post without loss of pay or, if reinstatement is not possible, to ensure that she is paid adequate compensation. The Committee requests to be kept informed in this respect.

(g) The Committee requests the Government to keep it informed of the progress of judicial proceedings concerning the certification of the majority trade union in the Guyana Forestry Commission and to provide it with a copy of the court ruling when it becomes available.

(h) The Committee requests the Government to take all necessary measures to ensure that the case concerning the Guyana Fire Service is heard in court as soon as possible, and trusts that in rendering a decision on this issue, full account will be taken of Article 2 of Convention No. 87, ratified by Guyana, pursuant to which firemen, like all other workers, have the right to establish and join organizations of their own choosing. The Committee requests the Government to keep it informed of developments in this respect and to transmit the court ruling when it becomes available.

111. In a communication dated 17 March 2004, the complainant indicates that trade union dues continue not to be deduced in favour of the Guyana Public Service Union by heads of departments, contrary to Public Service Rule Q4 and the High Court ruling of 21 July 2000. The complainant recalls that in its submissions dated 9 July and 13 August 2003 to the Committee, as stated in paragraph 706 of Case No. 2187, the Government informed the Committee that it complied with the High Court ruling by making deductions based on the check-off system. The complainant, however, informs the Committee that there are numerous instances, in which the ministries/departments/regions have not complied with the court order. The complainant adds that the issue has been ongoing for quite some time in several ministries and departments, although action taken by the complainant has managed to some extent to get some heads of departments to comply with the check-off arrangement. The complainant attaches copies of letters sent to the heads of departments of ministries and regions for which the complainant is not in receipt of any deduction of union dues. In total, the complainant attaches 16 letters sent to the administrations of ministries, regional authorities and hospitals, and concern 33 trade union members whose trade union dues have not been deducted.

112. In a communication dated 6 July 2004, the Government indicates that the complainant wrote to the Permanent Secretary, Public Service Ministry, on 17 March 2004 with respect to the non-deduction of union dues. The Permanent Secretary responded on 8 April 2004 by advising the complainant that the agencies identified by the union as non-compliant have been requested in writing to comply. According to the Government, the GPSU was requested to communicate any further default and there has been no further communication.

113. The Government adds that in its previous communications to the Committee it had posited that its responses were adequate to allow the Committee to conclude its examination of the case. The Government is still of such a view and considers that the complainant's action in submitting copies of routine correspondences between itself and the Public Service Ministry to the Committee is both mischievous and vexatious. The Government adds that it is complying with the request to provide observations purely out of respect for the ILO but may not feel obliged to respond to every frivolous claim by the union in the future. In any event, the grievance procedures should be fully utilized before any complaint is sent to the Committee. For the Committee to intervene when any dispute is at the initial stages, then a serious precedent of handling complaints may be created.

114. The Committee recalls that during the previous examination of this case it had requested both parties to implement the High Court ruling of July 2000 by, on the one hand, providing written authorizations for the deduction of trade union dues, and on the other hand, ensuring that such deductions and their payment to the GPSU are carried out promptly and in full. The Committee notes that according to the GPSU, the Government does not comply with the High Court ruling since many of its ministries, local administrations and hospitals do not proceed to the deduction of trade union dues in favour of the GPSU. The Committee notes that according to the Government, the agencies identified by the union as non-compliant have been requested in writing to comply with the High Court ruling and the GPSU has been requested to indicate any further cases of non-deduction. The Committee concludes, that apparently the trade union dues in question have been paid to the GPSU, and requests the Government to ensure that the deductions take place regularly in the future.

115. With regard to the Government's comment that it deemed its responses adequate so as to allow the Committee to conclude its examination of the case, the Committee specifies that although it reached definitive conclusions on this case, it requested the Government to keep it informed of developments on the outcome of a number of judicial proceedings concerning the enforceability of the 1999 Memorandum of Agreement on arbitration, the dismissal of 12 trade union officers and members on anti-union grounds, the certification of the majority union in the Guyana Forestry Commission and the deduction of trade union dues in the Guyana Fire Service. The Committee further recalls that it requested the Government to keep it informed of developments concerning improvements to the current check-off system through the adoption of adequate safeguards against interference, the forwarding to the GPSU of any contributions made in June and July 2000 which have been retained, and the institution of an independent inquiry into the reasons for the dismissal of Barbara Moore. The Committee therefore requests the Government to provide detailed and full information on all the above issues.

116. As to the Government's comment that it responds to the complainant's allegations purely out of respect for the ILO, the Committee notes that, when a state decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 10). The mandate of the Committee, moreover, consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions (see Digest, op. cit., para. 6). With regard to the Government's comment that it may not feel obliged to respond to every frivolous claim by the union in the future, the Committee emphasizes that Governments should recognize the importance for their own reputation of formulating detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination (see Digest, op. cit., para. 20). The Committee notes with regard to the Government's comment concerning the use of grievance procedures before any complaint is sent to the Committee that although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures (para. 33 of the Rules of Procedure of the Committee). As to the Government's comment that the Committee should not intervene when a dispute is at the initial stages, the Committee recalls that the facts of this case date back to 1999. The Committee therefore requests the Government to continue to cooperate with the Committee.

Case No. 2118 (Hungary)

117. The Committee last examined this case at its March 2004 session (see 333rd Report, paras. 74-76). On that occasion, the Committee urged 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.

118. In a communication dated 21 May 2004, the Government points to paragraph (6) of section 33, which states that if, in relation to the first two paragraphs of the section, the trade union or trade unions did not receive more than half the votes in the workers' council election, a collective bargaining agreement may be concluded, subject to endorsement by employees in a ballot in which more than half the eligible employees participate. The Government further informs the Committee that in 2003 a decision was taken to reform the Hungarian labour legislation and a committee was established to this end in 2004. The Government explains that it intends to assemble "the National ILO Council, so that the Social Partners could have discussion over the question". Before doing so, however, the Government wishes "to have a preliminary consultation among the Honourable Committee and the experts of the Government, in order to statement the position of each party".

119. The Committee notes the Government's observations. In relation to section 33(6), the Committee notes that this paragraph requires a ballot to endorse a collective agreement, in which at least 50 per cent of employees eligible to vote in workers' council elections participate. The Committee recalls that the Committee of Experts had considered that problems may arise when the law stipulates that trade unions must attain 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 (see General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, 1994, para. 241). The Committee repeats its earlier request that the Government take all necessary steps to amend section 33 so as to lower the minimum threshold requirements for recognition as a bargaining agent and ensure that where no trade union reaches these thresholds, collective bargaining rights are granted to all unions, at least on behalf of their own members.

120. The Committee notes the Government's information that reform of the labour legislation is currently under consideration, and that the Government intends to convene a national council to address these issues, but observes that the Government does not specifically state that such reforms will include modification of section 33 of the Labour Code. The Committee confirms that the technical assistance of the Office will be available in this process should the Government wish to avail itself of it. The Committee hopes that section 33 of the Labour Code will be considered as a matter of some priority. It draws the attention of the Committee of Experts on Application of Conventions and Recommendations to this case.

Case No. 2220 (Kenya)

121. The Committee examined this case, which concerned the arrest and detention of the chairperson of the Federation of Kenya Employers, at its June 2003 session (see 331st Report, paras. 559-578). On that occasion, it requested the Government to keep the Committee informed of the outcome of the court proceedings in respect of the identification and the sanction of the persons responsible for Mr. Mukuria's arrest.

122. In a communication dated 26 August 2004, the Government reiterated that it had given an undertaking that it would respect the employers' right to association and had provided a written apology to both Mr. Mukuria and the Federation. The Government attached a letter from the Federation to the IOE in which it stated that in light of the Government's actions "you may consider it appropriate to advise the Committee on Freedom of Association appropriately as we do not intend to pursue the case any further". The Government states that as far as the parties involved are concerned, the matter is closed and emphasizes that no trade union leaders have since been harassed or arrested for exercising their legitimate trade union activities.

123. The Committee notes the national Federation's intention not to pursue the matter following the Government's full written apology and undertaking to ensure respect for freedom of association. It further notes the information submitted by the Government that no similar incidents have since occurred.

Case No. 2266 (Lithuania)

124. The Committee examined this case on the merits at its June 2004 meeting. It concerns allegations of Government interference in the organizational activities of trade unions, and more specifically the distribution of trade union assets in the context of a transition from a trade union monopoly regime to a situation of trade union pluralism. The Committee requested the Government to hold further discussions with all interested parties with a view to finding a satisfactory solution for all concerned, and to keep it informed of developments (see 334th Report, para. 622).

125. In a communication dated 4 August 2004, the Government resubmits the information from the Office of the Prosecutor General (concerning court rulings at national level) and states that the situation has not changed since the decisions of the Constitutional Court are final, as provided by article 107 of the Constitution.

126. Noting with regret that the Government merely resubmitted some information already provided (see para. 613 of the 334th Report) the Committee recalls that it made the above recommendation after a substantive examination, on a tripartite basis, of the issues involved in this complaint, while taking into account the particular circumstances of the case and the importance of sound and harmonious schemes in such transition periods. The Committee therefore urges the Government, once again, to rapidly hold further discussions with all interested parties with a view to finding a satisfactory solution for all concerned and to keep it informed of developments.

Case No. 2132 (Madagascar)

127. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 98-104). On that occasion, the Committee requested the Government: (1) to state if section 1(3) of Decree No. 2000-291 of 31 May 2000, requiring trade unions to provide the Government with a list of their members, a copy of their by-laws and the names of their serving officers, had effectively been abrogated; (2) should it still be in force, to provide the Committee with a copy of Decree No. 97-1355, under the terms of which the social partners may not engage in collective bargaining without the authorization of the Ministry for the Development of the Private Sector and Privatization; and (3) to keep the Committee informed of any measures taken "to ensure that the representativity of trade unions is based on precise and objective legal criteria" (see 332nd Report, paras. 103-104).

128. In a communication dated 25 May 2004, the Government responds to the Committee's requests, reiterating the terms of a letter dated 5 September 2003, which was transmitted to the Committee as a part of its communication dated 3 October 2003, in which the Government announced in general terms that social dialogue had been resumed. In its communication dated 25 May 2004, the Government states that: "following the effective resumption of the social dialogue, all relations with social partners, within a tripartite framework, have been re-established against a background of mutual understanding (finalization of the draft Labour Code, text to the Senate, implementation of the new National Employment Council ...)".

129. The Committee takes note of this information. Noting that, in September 2004, the Government and the social partners received technical assistance from the ILO in the fields of representativity and freedom of association, the Committee requests the Government to keep it informed of any measures taken "to ensure that the representativity of trade unions is based on precise and objective legal criteria" (see 332nd Report, para. 103). Furthermore, the Committee reiterates two requests it formulated during its November 2003 meeting to which the Government has not yet responded. The Committee therefore requests the Government: (1) to state if section 1(3) of Decree No. 2000-291 of 31 May 2000 has effectively been abrogated; and (2) to provide the Committee with a copy of Decree No. 97-1355, should that decree still be in force.

Case No. 2301 (Malaysia)

130. This case concerns the Malaysian labour legislation and its application which, for many years, have resulted for workers in serious violations of the right to organize and bargain collectively: discretionary and excessive powers granted to authorities as regards trade unions 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 unions' representatives; establishment of employer-dominated unions; arbitrary denial of collective bargaining. The Committee formulated extensive recommendations at its March 2004 meeting (see 333rd Report, para. 599) and followed up on these at its June 2004 meeting in these terms (see 334th Report, paras. 39-40):

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).

The Committee deplores the lack of cooperation of 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.

131. In a communication dated 19 August 2004, the Government states that there are different socio-economic realities among member States. To further maintain a healthy growth of trade unions and industrial harmony in the country, it proposes to amend certain provisions in the relevant labour laws in order to facilitate the formation of unions, expedite claims for recognition and facilitate the process of collective bargaining. According to the Government, all workers in Malaysia, without distinction whatsoever, are accorded the right to establish and join trade unions, as provided for in the Constitution and the labour laws. Workers have not been denied their right to representation and collective bargaining, which is evidenced by the growth in union membership (725,322 in 1999; 788,620 in 2003), the number of registered trade unions (537 in 1999; 595 in 2003) and the increased number of collective agreements (268 in 1999; 369 in 2003). The Government reiterates that there is no necessity for an ILO mission in this matter.

132. The Committee notes the Government's reply, its stated intention (without any specifics, however) to amend "certain provisions" in the labour laws, and the data provided. The Committee recalls that the matters complained of in the present case are extremely serious ones, and that it has been called to comment upon them in no less than seven cases over a period of more than 15 years, without any progress whatsoever. The Committee strongly deplores, once again, the continued total lack of cooperation of the Government, which merely repeats previous statements and arguments, does not provide a substantive reply or fails to respond altogether. In these circumstances, the Committee must reiterate its initial recommendations in their entirety. It urges the Government to address rapidly the issues raised therein and to keep it informed of developments thereon.

Case No. 2048 (Morocco)

133. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 85-88). On that occasion, the Committee asked the Government to submit a copy of three decisions: first, the decision of the Rabat Court of Appeal concerning the sentences handed down against 21 striking farm workers at the Avitema farm; and, second, the two decisions of the Rabat Court of the First Instance and of the Rabat Court of Appeal concerning the criminal proceedings that resulted from certain events during the collective labour dispute at the Avitema farm in 1999 and the charges of abuse of power brought against Mr. Abderrazzak Challaoui, Mr. Bouazza Maâch and Mr. Abdeslam Talha.

134. On 13 May 2004, the Government replied to that request with a communication transmitting a letter from an official of the Ministry of Employment dated 11 May 2004. In that letter, the official indicates that "the current social atmosphere within the company (Avitema farm) is healthy and work is going on as normal". The official also adds that, since the collective dispute broke out in 1999, no complaint had been filed by a worker at the Avitema farm.

135. The Committee takes note of this information. Nonetheless, the Committee notes with regret that the Government has still not submitted the three decisions requested. The Committee underlines that it has been asking for the first decision since its March 2000 session (see 320th Report, para. 718), the second decision since its November 2000 session (see 323rd Report, para. 393) and the third decision since its March 2004 session (see 333rd Report, para. 87). The Committee recalls that it cannot reach conclusions that are fully justified without the full text of those decisions (see 333rd Report, para. 88). The Committee urges the Government to provide copies of these decisions.

Case No. 2109 (Morocco)

136. The Committee last examined this case, which concerns dismissals of eight trade unionists at the Fruit of the Loom company as well as acts of anti-union repression following the creation of a trade union office, at its June 2002 session (see 328th Report, paras. 53-55). On that occasion, the Committee noted that the eight trade union officers concerned in this complaint had filed proceedings to obtain compensation for unlawful dismissal, that decisions had been handed down in the case of two of the eight trade union officers, and that the Government was awaiting the rulings concerning the remaining six cases. The Committee requested the Government to continue to keep it informed of developments on the issues pending before the national courts, namely: "the court ruling concerning the records entered by the Labour Inspectorate, and (...) the court decisions handed down in the proceedings filed by the workers to obtain compensation for unlawful dismissal" (see 327th Report, para. 80).

137. In a communication of 25 May 2004, the Government transmititted a letter, dated 24 May 2004, from the prefectorial representative of the Ministry of Employment in the town of Salé. That letter indicates that the records entered by the Labour Inspectorate with regard to the collective dismissal of unionized workers had been registered at the Court of the First Instance in Rabat under reference No. 3965/2001/symbole 23 and that "they were used in several hearings, the most recent being 13 February 2003, in which consideration of the records entered was postponed to the hearing of 8 May 2003". The letter also indicates that, with regard to the proceedings brought before the Court of the First Instance in Salé by the "four remaining workers", the Court has handed down its ruling in respect to two of them (the first ruling rejected the claim of the worker Mr. Bakkacha Mohammed, and the second ruling was in favour of Ms. Salima Laoui, who received a total of 44,951.13 dirhams in redundancy pay), while consideration of the claims concerning Mr. Abdellah Sainane and Mr. Lahcen Toufik was postponed to hearings on 7 and 21 May 2003.

138. While noting the information submitted by the Government with respect to the situation of four dismissed workers, the Committee recalls that it had requested information concerning the six workers. The Committee therefore requests the Government to provide information about the status of the proceedings regarding the records entered by the Labour Inspectorate, and of the two workers unaccounted for.

139. Moreover, the Committee expresses the hope that the decisions regarding the records entered by the Labour Inspectorate and the proceedings brought by Mr. Abdellah Sainane and Mr. Lahcen Toufik have already been handed down and that the Government will be able to provide them in the near future.

Case No. 2164 (Morocco)

140. This case was last examined by the Committee at its March 2004 session (see 333rd Report, paras. 600-612) and concerns measures taken by the Caisse Nationale du Crédit Agricole (CNCA) against several workers represented by the National Union of Bank Employees (SNB/CDT) for having exercised trade union activities or taken part in a strike. At that time, the Committee requested the Government to ensure that inquiries were instituted as soon as possible to determine whether: "(1) the 34 temporary workers, including two members of the trade union executive committee, Mr. Karim Rachid and Mr. Aziz Youssef, were treated prejudicially because of their participation in the strike of 12 April 2001; (2) Mr. Chatri Abdelkader was subjected to disciplinary suspension because of his trade union activities; and (3) the striking workers, including the union officers named by the complainant organization, were penalized for their participation in the strike of 13 and 14 June 2001". The Committee also requested the Government, if it was demonstrated that the measures taken by the CNCA were anti-union in nature, to take the necessary steps for the rights of the aggrieved workers to be restored.

141. In a communication dated 31 May 2004, the Government transmitted a letter from the general manager of CNCA, dated 24 May 2004. That letter makes four main points: (1) the Court of the First Instance handed down a ruling in favour of CNCA in proceedings brought by the 34 temporary workers who had been subjected to prejudicial measures; (2) in the light of the conclusion of the 34 temporary workers' case, the CNCA "proceeded, at their request, to compensate 21 of the 34 casual staff by paying them a sum of 680,000 dirham". The letter also indicates that the non-compensation of the remaining 13 temporary workers was justified by the fact that they had not asked for compensation; (3) changes "always (occur) in the context of ordinary administrative staff management. The changes are motivated by the needs of the service and are often accompanied by promotions". It also emphasized the fact that "a total of 534 transfers had been recorded across all the branches of CNCA in 2001"; (4) Mr. Chatri Abdelkader had been the subject of a dismissal after being brought before the disciplinary council. Mr. Abedlkader had subsequently "been non-suited in the two complaints that he filed against CNCA. Afterwards, he formulated a request to leave his job and received severance pay of 226,000 dirham, with effect from 1 October 2002".

142. The Committee takes note of the information transmitted by the Government and observes that its communication refers to several judicial or administrative decisions. Since it is essential to have the full text of these decisions in order to reach entirely objective conclusions, the Committee requests the Government to submit to it: (1) the decision of the Court of the First Instance concerning the case filed against CNCA by the 34 temporary workers;( 2) the decision of the disciplinary council concerning the dismissal of Mr. Chatri Abdelkader; and (3) the two judicial decisions concerning the complaints filed against CNCA by the same Mr. Abdelkader.

143. Moreover, the Committee regrets that the communication from the Government did not make any reference to the measures reportedly taken against the workers who participated in the strike of 13 and 14 June 2001. The Committee recalls that its questions specifically concerned the underlying motives for the sanctions imposed on those striking workers, including the members of the trade union executive committee appointed by the complainant organization, namely: Mr. Jamal Boudina, Mr. Ahmed Arrout, Mr. Abdessamad Mammad, Mr. Mustapha Hafidi, Mr. Mustapha Kounech, Mr. Mahjoube Ennaj, Mr. Said Benjamae, Mr. Lahcem Chkha, Ms. Naja Mimouni and Ms. Ouafae Chmaou (see 333rd Report, para. 603). The Committee again requests the Government to ensure that inquiries are opened promptly to determine whether the striking workers, including the members of the trade union executive committee appointed by the complainant organization, were sanctioned for their participation in the strike of 13 and 14 June 2001 and, if the anti-trade union nature of those measures - or of some of them - is demonstrated, to take steps to ensure that the workers concerned are immediately reinstated to their positions of employment with payment of the salaries owing. If reinstatement is not possible, adequate compensation should be paid to the workers concerned. The Committee requests the Government to keep it informed on this matter and to transmit to it the documents requested.

Case No. 2175 (Morocco)

144. The Committee last examined this case at its March 2004 meeting (see 333rd Report, paras. 89-91). The Committee recalls that the case involves the refusal of the Professional Association of Moroccan Banks (GPBM), an organization that comprises all the commercial banks operating in Morocco, to open dialogue and negotiate with the Banks' National Trade Union (SNB), affiliated to the Democratic Labour Confederation (CDT). When it last examined the case, the Committee expressed the hope that the GPBM would respond favourably to the invitation it received from the Government to open dialogue with the SNB/CDT.

145. In its communication dated 6 September 2004, the Government encloses an undated letter from the GPBM. The letter states that the GPBM has never been opposed either to have dialogue or negotiate with the most representative trade union. The letter also states that: "On the one hand, the CDT is not a signatory to the collective labour agreement governing staff working in the Moroccan banking sector, this having been signed with the Moroccan Labour Union (UMT), the only other legal party to the agreement. On the other hand, section 25 of the Labour Code sets out the definition of the most representative trade union as being 'the trade union which has polled at least 35 per cent of the total number of staff delegates elected at the level of the enterprise or the establishment'. The CDT does not fulfil that condition."

146. The Committee takes note of this information. Firstly, the Committee notes that the statement contained in the letter from the GPBM to the effect that the SNB/CDT had not obtained at least 35 per cent of the total number of staff delegates elected at the level of the enterprise or the establishment had not been corroborated because in its complaint the CDT states that it had obtained 51 per cent of the total number of staff delegates. The Committee therefore requests the Government to explain on what basis those figures were put forward by the GPBM.

147. Moreover, the Committee notes that, in accordance with the new Labour Code, the minimum percentage of delegates required in order to be considered as a representative organization is 35 per cent and, as a consequence, according to the GPBM, the SNB/CDT had not fulfilled the criteria for representativity. The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations will examine the new legislation as a part of the regular supervision of the application of Convention No. 98. The Committee intends to re-examine this case at a later meeting in the light of new information that it will then have in its possession.

Case No. 2243 (Morocco)

148. The Committee last examined this case at its March 2004 session (see 333rd Report, paras. 92-95). It recalls that this case concerns a complaint by the Democratic Confederation of Labour (CDT) regarding the refusal by the Societé central des boissons gazeuses (SCBG) to recognize its workers' trade union executive, which is affiliated to it, as well as acts of anti-union discrimination committed by the SCBG comprising "pressure on the trade unionists for them to resign from the union, through the application of unlawful sanctions against trade unionists, and, finally, the dismissal of two trade unionists, Mr. Najahi Mohamed and Mr. Chahrabane Azzedine" (see 331st Report, para. 596). When it last examined the case, the Committee had asked the Government to continue with its initiatives - and to keep it informed of developments - with a view to allowing the trade union executive affiliated to the CDT to carry out freely its activities within the SCGB; to ensure that inquiries were promptly opened to determine whether the individual measures - including the dismissals of Mr. Mohamed and Mr. Azzedine - taken against the 20 workers, members or leaders of the trade union executive, were due to their trade union activities and, if so, to take the necessary steps to ensure that those measures were lifted.

149. In a communication dated 17 May 2004, the Government transmitted two letters: the first, dated 4 December 2003, is from the general manager of the SCBG and the second, undated, from an official of the Ministry of Employment. Both these letters refer, with respect to follow-up to the initiatives taken by the Government concerning the freedom of action of the trade union executive of the CDT within the SCBG, to a vote held on 17 September 2003 to elect the staff representatives of the SCBG. On that occasion, the candidates affiliated to the central CDT trade union won 22.72 per cent of the votes cast and won five out of a possible 22 representative positions. The Committee notes that the letter from the Ministry of Employment representative indicates that: "the staff representatives elected under the CDT banner, some of whom are concurrently members of the trade union executive, exercise freely their duties as representatives and enjoy the prerogatives and the means accorded to them by the legislation". Moreover, the letter of the general manager of the SCBG indicates that "as the central CDT trade union did not obtain the 35 per cent necessary in order to be able to claim the status of most-representative trade union, we continue to negotiate collectively with all the CDT and SAS representatives elected by the staff, in the framework of a common collegiate that represents the workers of the SCBG".

150. The letter from the official of the Ministry of Employment indicates that the labour inspectorate reported SCBG for failure to respect the dismissal procedure with regard to the dismissal of Mr. Mohamed and Mr. Azzedine. This letter also indicates that "the two persons concerned who had been given, at their request, a certificate by the labour inspectorate attesting to their position as staff representatives, had been invited to take the 'unlawful' dismissal to court, but had declined". Regarding the other measures taken against 20 workers - dismissals, transfers from one workplace to another, and demotions (see 331st Report, para. 600) - the letter from the official of the Ministry of Employment indicates that "the labour inspectorate took action against the management that eventually produced favourable responses to the requests of those of the employees concerned who wished to be reinstated to sales positions". The Committee notes that the letter from the general manager of the SCBG supports this information.

151. The Committee takes note of the information submitted by the Government. The Committee notes in particular that initiatives taken by the Government had contributed to the individual measures that had been imposed on the 20 workers who were members or leaders of the trade union executive being lifted. The Committee emphasizes, in this respect, the report made by the labour inspectorate concerning the dismissals of Mr. Mohammed and Mr. Azzedine and the acceptance, by the SCBG, of the requests for reinstatement of the 20 workers concerned. However, the Committee notes with regret that the communication from the Government does not contain any information that made it possible to determine whether the conclusions of the report or the lifting of the sanctions implied confirmation that those measures had been taken due to the trade union activities of the workers concerned. The Committee recalls that no person shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690). Consequently, the Committee requests the Government to draw the attention of the SCBG to this principle. The Committee hopes that in future the employees of the SCBG will be able to exercise freely, within the company, their trade union rights and freedoms.

Case No. 2281 (Mauritius)

152. During the previous examination of this case, which concerned the need to revise the Industrial Relations Act (IRA) in conformity with freedom of association principles, the Committee took note of the Government's statement that it is committed to amending the IRA and has set up a tripartite committee as well as a technical one at the Ministry of Labour and Industrial Relations to this end. The Committee requested the Government to take all necessary measures as soon as possible to conclude the revision of the IRA in consultation with the social partners and strongly encouraged the Government to make use of ILO technical assistance with a view to facilitating this process (see 333rd Report approved by the Governing Body at its 289th Session, paras. 613-641).

153. In a communication dated 27 July 2004, the Government reiterates its commitment to replace the IRA by new legislation. A technical committee has been examining all previous reports on the subject, including the recommendations of the Committee. Consultations have been held with the 13 federations of trade unions and the employers' organizations which have submitted written memoranda to the technical committee. The Government adds that, in the framework of technical assistance, a high-level ILO delegation provided a tripartite seminar on freedom of association and collective bargaining from 6 to 8 July 2004. Forty-two participants attended the seminar, including representatives from the 13 trade union federations of the country and one trade union from Rodrigues (part of Mauritius), employers' organizations, relevant ministries, the University of Mauritius and the National Economic and Social Council. The seminar focused on ILO Conventions Nos. 87 and 98. The Government indicates that the seminar helped to develop a shared and common understanding of the concepts underlying the two Conventions among the participants. After the explanations provided by the ILO experts, there was general consensus among the participants that: (i) collective bargaining should be promoted; (ii) trade union organizations should be allowed greater autonomy to manage their affairs; (iii) the structures and mechanisms for dispute resolution and conciliation should be reinforced; (iv) explicit provisions should be made for anti-union discrimination; (v) peaceful resolution of disputes should be encouraged; and (vi) strikes should be envisaged as a last resort after all avenues for conciliation and mediation have been exhausted. The participants also identified strategies to promote collective bargaining, namely: (i) trade union recognition; (ii) carrying out negotiations in good faith; (iii) the signing of procedural agreements to make provision for access to information, access to the workplace, time-off facilities and recognition of the status of the negotiator; (iv) addressing the issue of low rate of unionization; (v) capacity building for trade unions and employers through training in negotiating skills and in new industrial relations issues. The Government finally indicates that a white paper is being prepared for the revision of the IRA and will be submitted to the Council of Ministers shortly.

154. The Committee takes note with interest of the tripartite seminar on freedom of association and collective bargaining which was provided by a high-level ILO delegation from 6 to 8 July 2004 and helped to develop a shared and common understanding among the participants on the concepts underlying the two Conventions, including with respect to the issues of trade union autonomy, anti-union discrimination, dispute resolution, the right to strike and strategies to promote collective bargaining. The Committee also notes with interest the Government's statement that a white paper is being prepared for the revision of the IRA and will be submitted to the Council of Ministers shortly. The Committee hopes that the process for the revision of the IRA will be concluded soon so as to bring it in full conformity with Conventions Nos. 87 and 98 and requests the Government to keep it informed of the steps taken in this respect.

155. The Committee also notes the Government's statement that consultations have been held with the 13 trade union federations and the employers' organizations which submitted written memoranda to the technical committee concerning the revision of the IRA. The Committee requests the Government to maintain the consultations with the social partners during the process of the revision of the IRA and to keep it informed in this respect.

Case No. 2234 (Mexico)

156. The Committee last examined this case at its November 2003 meeting (see 332nd Report, paras. 752-783). On that occasion the Committee made the following observation: "Observing that the judicial authority has yet to decide on the charges against Mr. Fernando Espino Arévalo, General-Secretary of the Metropolitan Rail Transport Workers' Union (SMTSTC) and the other participants in the industrial action carried out on 8 August 2002 in the metropolitan passenger train, the Committee expresses the hope that in handing down its decision, the judicial authority will take fully into account the principle according to which no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. The Committee requests the Government to keep it informed in this respect."

157. In its communications dated 11 May and 25 October 2004, the Government announces that the Federal District Public Prosecutor's Office stated that it would take into account the recommendation made by the Committee on Freedom of Association and would act in accordance with the law, at all times complying with the guiding principles of the Political Constitution of the United States of Mexico whilst respecting the right to strike. The Government adds that, however, it should be reiterated that, in the case in question, the strike was not legal, as the way in which it was called for did not comply with the terms of articles 92-109 of the Federal Public Employees Act which set out the relevant procedures to be followed by federal public employees wishing to exercise the right to strike. The Government likewise states that it is appropriate to point out that the corresponding decision has not yet been announced, as the Chamber of Deputies is still looking into the request to withdraw the parliamentary privileges of Mr. Fernando Espino Arévalo.

158. The Committee takes note of the information provided. The Committee hopes that the judicial authority will announce a decision as soon as possible and that it will fully take into account the principles of freedom of association and asks the Government to keep it informed in this respect.

Case No. 1965 (Panama)

159. At its March 2004 meeting, the Committee requested the Government to send it a copy of the decisions handed down on the dismissal of Messrs Darío Ulate and Julio Trejos (see 333rd Report, para. 112).

160. In its communication dated 24 May 2004, the Government states that a copy of the decisions will be sent to the Committee once they have been handed down.

161. The Committee notes this information and awaits the decision on the dismissal of Messrs Darío Ulate and Julio Trejos.

Case No. 2252 (Philippines)

162. The Committee examined this case at its November 2003 session (see 332nd Report, paras. 848-890). On that occasion, it requested the Government to amend the national legislation so as to allow for a fair, independent and speedy certification process and to provide protection against acts of interference by employers, and to pursue measures to amend the Labor Code, in particular article 263(g) concerning the exercise of the right to strike. The Committee trusted that the Government would ensure that the Toyota Motor Philippines Corporation Workers' Association (TMPCWA) and the Toyota Philippines Corporation negotiate in good faith to reach a collective agreement. Further, the Committee requested the Government to initiate discussions to consider the reinstatement of the 227 workers dismissed by the corporation and the union officers who were deemed to have lost their employment status or, if reinstatement was not possible, the payment of adequate compensation. The Committee requested the Government to keep it informed in all these respects as well as of any measures taken to withdraw the criminal charges laid against union officers. Finally, the Committee requested the Government to consider accepting a consultative mission in relation to this case.

163. In a communication dated 13 February 2004, the complainant organization alleges that the corporation continued to refuse to negotiate with the union, despite a decision of the Supreme Court dated 24 September 2003 setting aside the Court of Appeal's preliminary injunction preventing the union from demanding collective bargaining. In fact, the corporation had filed a request to the Supreme Court to have the injunction reinstated, interfered in the establishment of another union at the company, and continued pressure through the ongoing criminal cases. The complainant stated that the Government took no actions in relation to the Supreme Court's decision. In a communication dated 10 June 2004, the complainant organization reiterated that the Government had taken no concrete actions in relation to the Committee's recommendations and enclosed copies of the decisions of the Supreme Court dated 24 September 2003 and 28 January 2004, as well as certain correspondence from the National Conciliation and Mediation Board and from the corporation, in which it maintained its position that no legal decision as to the substance of the matter had been reached.

164. In its communication dated 18 May 2004, the Government stated that by nullifying the preliminary injunction previously issued by the Court of Appeal, the Supreme Court had simply dissolved the temporary relief granted to the corporation and the main issue concerning the legitimacy of the union's certification by the Secretary of Labor and Employment as exclusive bargaining agent remained unresolved. Only duly certified unions may bring complaints before the National Labor Relations Commission, or file notices of intention to strike. Thus, unless and until a final judgement is issued by the appropriate court on the merits of the case, the Department of Labor and Employment cannot be accused of inaction. In its communication dated 8 July 2004, the Government provided further information by way of the Supreme Court's decisions of 24 September 2003 and 28 January 2004.

165. The Committee regrets that the Government has chosen not to provide any follow-up information in relation to its earlier recommendations and has limited its reply to responding to the complainant organization's later allegations concerning the decisions of the Supreme Court. The Committee notes that its recommendations were independent of those decisions and urgently requests the Government to take the necessary steps to: (1) amend the national legislation so as to allow a fair, independent and speedy certification process and to provide protection against acts of employer interference; (2) amend article 263(g) of the Labor Code; (3) take measures so that TMPCWA and the Toyota Philippines Corporation negotiate in good faith; and (4) initiate discussions to consider the reinstatement of the 227 workers dismissed or, if reinstatement is not possible, the payment of adequate compensation. The Committee requests to be kept informed in this regard.

166. In relation to the decisions of the Supreme Court, the Committee notes that the 24 September 2003 decision nullifies the preliminary injunction that the corporation had obtained to prevent the union from demanding collective bargaining. The Supreme Court's decision of 28 January denies the corporation's motion for reconsideration "with finality", thus confirming its earlier decision. The Committee further notes the Government's statements that these decisions do not affect the substance of the case and until such time as the court determines that the certification process was correct and the TMPCWA can be considered to be the exclusive bargaining agent at the company, the Department of Labor and Employment cannot be accused of inaction.

167. The Committee requests the Government to provide clarification as to whether, in the absence of an injunction preventing the TMPCWA from relying upon its earlier certification by the Secretary of Labor and Education as exclusive bargaining agent, the certification is valid despite the pending legal challenge, until any appropriate court order to the contrary.

Case No. 2146 (Serbia and Montenegro)

168. The Committee last examined this case at its meeting in March 2004 (see 333rd Report, paras. 119-125) when it observed that the law abrogating the law on the Yugoslav Chamber of Commerce may be inconsistent with the Labour Law, in so far as it enables the new Serbian Chamber of Commerce and Industry to have compulsory membership and to exercise powers in relation to collective bargaining. The Committee trusted that it would receive the necessary information concerning the right of employers to organize in Montenegro and, in particular, concerning that country's Chamber of Commerce and Industry. The Committee requested the Government to take the necessary steps to ensure 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 underlined that this request applied equally to any similar legislative provisions in the Republic of Montenegro. Finally, the Committee requested the Government to indicate how many collective agreements had been concluded and signed only by employers' organizations during the last two years in Serbia and Montenegro.

169. In a communication submitted to the Committee on 2 June 2004, the Government provided further information in reply. The Government pointed out, in relation to the situation in Serbia, that the right of Chambers of Commerce to participate in collective agreements has not been inherited from the Yugoslav Chamber; that the Labour Law excludes Chambers of Commerce as obligatory participants of employers' associations in collective bargaining; and that this is evidenced by the fact that no collective agreement has been concluded by the Serbian Chamber since the entry into force of the Labour Law on 21 December 2001. A separate collective agreement for the hotel and tourism industry in Serbia was signed on 11 June 2003 by two voluntary employers' associations. The Government considered that the reason that no other collective agreements had been signed was a lack of initiative on the part of the authorized representatives and the fact that most collective agreements occur at the employer level.

170. In relation to the Republic of Montenegro, the Government explained that the drafting of the law amending the current Labour Law is under way. The Government stated that the amendment aims to regulate the matter of employers' organizations in accordance with ILO standards, based on the principles of voluntariness and independence. Currently, the Chamber of Commerce, as an employers' representative, is not a voluntary organization. The Government stated that the Republic of Montenegro has availed itself of ILO technical assistance in the drafting of the amendment.

171. The Committee notes the information provided by the Government in relation to the powers and activities of the Serbian Chamber of Commerce and, in particular, that the Labour Law excludes it as obligatory participant in collective agreements and that it has not concluded any collective agreements since the adoption of the Labour Law.

172. The Committee notes that the Republic of Montenegro is currently amending its labour legislation, with the intention of ensuring that employers' associations are truly independent collective bargaining agents. The Committee welcomes such an initiative, and requests the Government to provide it with a copy of the relevant law once it is drafted.

Case No. 2255 (Sri Lanka)

173. During the previous examination of this case (see 333rd Report paras. 126-131), which concerns certain provisions of the Guidelines for the Formation and Operation of Employees' Councils issued by the Board of Investment (BOI), i.e. the overseeing public authority in free trade zones (FTZs), the Committee: (1) had noted that certain amendments had already been drafted (concerning section 5 on the organization of elections to employees' councils, section 12.3 on the procedure for the conduct of meetings between the employer and elected representatives, and section 13(ii) on the conduct of negotiations between the employees' council and the employer) and expressed the hope that they would soon be adopted by the National Labour Advisory Council (NLAC); (2) had recalled that only two collective agreements had been concluded in FTZs and had requested the Government to take measures with a view to promoting collective bargaining in FTZ enterprises and to amend the 40 per cent requirement for the recognition of trade union representativeness for collective bargaining purposes, which had been considered as too restrictive by the Committee; (3) had requested the Government to ensure that representative trade unions enjoy the same facilities in the undertaking as employees' councils without discrimination and therefore, to ensure that section 9A of the Labour Standards and Employment Relations Manual enables trade union representatives to have access to the workplace even when their organization does not have representative status in a particular 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.

174. In its communication dated 14 May 2004, the Government indicates with regard to the first issue noted above, that the BOI has already effected the modifications suggested by the Committee concerning section 5 on the organization of elections to employees' councils, section 12.3 concerning the procedure for the conduct of meetings between the employer and elected representatives and section 13(ii) on the conduct of negotiations between the employer and elected representatives. The Government attaches the final printed version of the BOI Guidelines for the Formation and Operation of Employees' Councils which contain the modifications in question. It further adds that these modifications have not been presented to the NLAC for adoption yet because this body became defunct prior to the national elections of 2 April 2004 and had to be reconstituted after the elections. The Government assures the Committee that once the NLAC resumes its meetings, the Guidelines will be presented to it for discussion and adoption.

175. With regard to the 40 per cent threshold for recognition of trade union representativeness, the Government notes that this threshold applies only for collective bargaining purposes and for no other representation function and that the trade unions have not complained of this rule which came into force in 1999. The Government finally indicates that this matter would be taken up by the NLAC once reconstituted.

176. With regard to the issue of access to the FTZs by trade union representatives, the Government indicates that section 9A of the BOI Manual on Labour Standards and Employment Relations was modified so that trade union representatives are guaranteed access to workplaces with due respect for the rights of property and management. The Government attaches the text of the Manual, section 9A which provides the following:

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, with due respect for the rights of property and management, provided the union:

(a) seeks access to the enterprise for the purpose of performing representation functions;

(b) has obtained the consent of the employer for such access which may not be unreasonably withheld, with due respect to the need to maintain the smooth functioning of the enterprise concerned; and

(c) 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.

177. The Committee recalls that during the previous examination of this case it had already taken note of the modifications to sections 5, 12.3 and 13(ii) of the BOI Guidelines for the Formation and Operation of Employees' Councils and had expressed the hope that they would be adopted by the NLAC soon. The Committee notes that according to the Government, although these amendments are now final and figure in the printed version of the Guidelines, they have not been presented yet to the NLAC for adoption because this body became defunct prior to the national elections held on 2 April 2004 and had to be reconstituted thereafter. The Committee notes that according to the Government, the Guidelines will be presented to the NLAC once this body resumes its meetings. The Committee requests the Government to keep it informed in this respect.

178. With regard to the revision of the 40 per cent threshold for recognition of trade union representativeness, the Committee notes that, according to the Government, the issue of the 40 per cent requirement will be taken up by the NLAC once reconstituted. The Committee requests to be kept informed in this respect.

179. The Committee also notes that the Government does not indicate any further measures taken to promote collective bargaining in FTZs, as requested by the Committee. The Committee recalls that the actual or potential position of trade unions as collective bargaining agents should not be undermined by the presence of works councils and that the right of trade unions to participate in collective bargaining should be safeguarded. The Committee therefore once again requests the Government to indicate the concrete measures taken to promote collective bargaining in FTZs and to provide statistical data regarding the number of collective agreements concluded in FTZs during the last year.

180. Concerning the issue of the access of trade union representatives to FTZs, the Committee notes that section 9A of the BOI Manual on Labour Standards and Employment Relations has been revised so as to provide trade unions with this facility under certain conditions. The Committee observes that, according to section 9A, access of trade union representatives to FTZs is envisaged only "for the purpose of performing representation functions". The Committee requests the Government to specify the exact scope and meaning of this phrase.

Case No. 2171 (Sweden)

181. At its June 2004 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 recalled its previous request that the Government should take remedial measures so that agreements already negotiated in such matters continue to produce all their effects until their expiry dates. It also requested the Government to keep it informed of the results obtained at a meeting with bargaining partners in June 2003, and on any further consultation held. Finally, the Committee requested the Government to implement its recommendations in conformity with freedom of association principles and to keep it informed of developments (see 334th Report, para. 66).

182. In a communication dated 17 September 2004, the Government explains that the Committee's request for "remedial measures so that agreements already negotiated on compulsory retirement age shall continue to produce all their effects until their expiry dates, including after 31 December 2002" is complicated, for both political and legal reasons. For the Government, the political complication arises because the provision has been prompted by the new pension system, which is based on an agreement between five of the parliamentary parties; the issue is now beyond the Government since the Parliament has enacted the new provisions. As regards the legal aspects, several problems must be taken into account when considering putting back in force a collective agreement that has been made invalid for some time, or even renegotiated. The Government also states that the Minister for Employment intends to resume contacts with social partners in the near future.

183. The Committee notes this information. While noting the Government's explanations on the political and legal difficulties that may arise in implementing said recommendations, the Committee refers to its extensive analysis of the fundamental issues at stake in its initial examination on the merits of this case (330th Report, paras. 1010-1053) including the misgivings that existed at national level on the proposed legislation within the workers' and employers' communities, the Swedish tripartite ILO Committee (ibid. para. 1017) and the Swedish Council on Legislation (ibid., para. 1026) and finds no reason to vary its recommendations. The Committee also notes that the Government did not provide the information requested concerning the results of the meeting held with bargaining partners in June 2003 and of any further consultations. The Committee therefore reiterates it previous requests: that the Government should take remedial measures so that agreements already negotiated on compulsory retirement age shall continue to produce all their effects until their expiry dates, including after 31 December 2002; and that it should resume thorough consultations on these issues, with a view to finding a negotiated solution which would be mutually acceptable to all parties concerned, in conformity with freedom of association principles. The Committee requests the Government to keep it informed of developments in this matter, and of the results of meetings with bargaining partners, including those which the Government states it intends to initiate in the near future.

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

Case / Last examination on the merits / Last follow-up examination

1826 (Philippines) / March 1996 / November 2003

1854 (India) / March 1997 / November 2003

1890 (India) / June 1997 / March 2004

1937 (Zimbabwe) / March 1998 / March 2004

1951 (Canada) / June 2001 / March 2004

1952 (Venezuela) / March 1999 / March 2004

1970 (Guatemala) / November 2000 / November 2002

1975 (Canada) / June 2000 / March 2004

1991 (Japan) / November 2000 / June 2004

1996 (Uganda) / June 1999 / March 2004

2027 (Zimbabwe) / March 2000 / March 2004

2086 (Paraguay) / June 2002 / November 2003

2088 (Venezuela) / March 2004 / -

2096 (Pakistan) / March 2004 / -

2114 (Japan) / June 2002 / November 2002

2125 (Thailand) / March 2002 / March 2004

2126 (Turkey) / March 2002 / June 2004

2134 (Panama) / March 2003 / March 2004

2141 (Chile) / March 2002 / March 2004

2148 (Togo) / March 2002 / November 2003

2150 (Chile) / November 2002 / March 2004

2158 (India) / March 2003 / March 2004

2161 (Venezuela) / March 2003 / March 2004

2166 (Canada) / March 2003 / March 2004

2172 (Chile) / March 2004 / -

2173 (Canada) / March 2003 / March 2004

2178 (Denmark) / March 2003 / November 2003

2180 (Canada) / March 2003 / March 2004

2182 (Canada) / March 2003 / March 2004

2186 (China, Special Administrative Region of Hong Kong) / March 2004 / -

2192 (Togo) / March 2003 / -

2195 (Philippines) / November 2002 / November 2003

2196 (Canada) / March 2003 / March 2004

2198 (Kazakhstan) / November 2002 / November 2003

2200 (Turkey) / June 2004 / -

2211 (Peru) / June 2004 / -

2215 (Chile) / June 2004 / -

2216 (Russian Federation) / November 2003 / June 2004

2225 (Bosnia and Herzegovina) / November 2003 / -

2229 (Pakistan) / March 2003 / March 2004

2230 (Guatemala) / March 2003 / March 2004

2242 (Pakistan) / November 2003 / -

2250 (Argentina) / November 2003 / -

2251 (Russian Federation) / March 2004 / -

2253 (China, Special Administrative Region of Hong Kong) / June 2004 / -

2267 (Nigeria) / June 2004 / -

2271 (Uruguay) / June 2004 / -

2280 (Uruguay) / June 2004 / -

2284 (Peru) / March 2004 / -

2288 (Niger) / March 2004 / -

2296 (Chile) / June 2004 / -

185. The Committee hopes that these governments will quickly provide the information requested.

186. In addition, the Committee has just received information concerning the follow-up of Cases Nos. 1785 (Poland), 2038 (Ukraine), 2079 (Ukraine), 2084 (Costa Rica), 2104 (Costa Rica), 2197 (South Africa), 2208 (El Salvador), 2221 (Argentina), 2233 (France), 2272 (Costa Rica), 2291 (Poland), 2299 (El Salvador) and 2316 (Fiji), which it will examine at its next meeting.