GB.268/6 - Governing Body

1. The Committee on Freedom of Association, set up by the Governing Body at its 117th Session (November 1951), met at the International Labour Office, Geneva, on 6, 7 and 14 March 1997, under the chairmanship of Professor Max Rood.

2. The members of Indian and Argentinean nationalities were not present during the examination of the cases relating to India (Case No. 1854) and Argentina (Case No. 1867) respectively.

* * *

3. Currently, there are 73 cases before the Committee, in which complaints have been submitted to the governments concerned for observations. At its present meeting, the Committee examined 24 cases on the merits, reaching definitive conclusions in 14 cases and interim conclusions in 10 cases; the remaining cases were adjourned for reasons set out in the following paragraphs.

New cases

4. The Committee adjourned until its next meeting the examination of the following cases: Nos. 1911 (Ecuador), 1914 (Philippines), 1915 (Ecuador), 1916 (Colombia), 1917 (Comoros) and 1918 (Croatia), because it is awaiting information and observations from the Governments concerned. All these cases relate to complaints submitted since the last meeting of the Committee.

Observations requested from governments

5. The Committee is still awaiting observations or information from the Governments concerned in the following cases: Nos. 1805 (Cuba), 1876 (Guatemala), 1888 (Ethiopia), 1892 (Guatemala), 1894 (Mauritania), 1895 (Venezuela), 1897 (Japan), 1898 (Guatemala), 1899 (Argentina), 1902 (Venezuela) and 1907 (Mexico).

Observations requested from complainants

6. In Case No. 1881 (Argentina), the Committee is still awaiting the complainant's comments. The Committee requests the complainant to send without any further delay the observations and information requested.

Partial information received from governments

7. In Cases Nos. 1512, 1539, 1595, 1740, 1778, 1786 and 1823 (Guatemala), 1773 (Indonesia), 1835 (Czech Republic), 1869 (Latvia), 1887 (Argentina) and 1900 (Canada/Ontario), the Governments have sent partial information on the allegations made. The Committee requests all of these Governments to send the remaining information without delay so that it can examine these cases in full knowledge of all the facts.

Observations received from governments

8. As regards Cases Nos. 1850 (Congo), 1852 (United Kingdom), 1855 (Peru), 1877 (Morocco), 1880 (Peru), 1886 (Uruguay), 1890 (India), 1905 (Zaire), 1909 (Zimbabwe), 1910 (Zaire), 1912 (United Kingdom/Isle of Man) and 1913 (Panama), the Committee has very recently received the Governments' observations and intends to examine the substance of this case at its next meeting.

Urgent appeals

9. As regards Cases Nos. 1812 (Venezuela), 1828 (Venezuela), 1851 (Djibouti), 1863 (Guinea), 1864 (Paraguay), 1872 (Argentina) and 1873 (Barbados), the Committee observes that, despite the time which has elapsed since the presentation of these complaints or since their last examination, it has not received the Governments' observations. The Committee draws the attention of all these Governments 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, even if the observations or information requested from the governments have not been received in due time. The Committee accordingly requests the Governments to transmit their observations or information as a matter of urgency.

* * *

10. The Committee takes note of communications from a law firm sent on behalf of the Association of Nurses and Radiographers at the County Hospital of Glostrup (Denmark) dated 28 October and 13 November 1996. These communications raise exactly the same issues as those arising out of the complaint of the Danish Nurses' Organization which were dealt with within the framework of Case No. 1882. In these conditions, the Committee decides not to examine this complaint on the merits and refers to the conclusions adopted in Case No. 1882.

* * *

11. The Committee draws the legislative aspects of the following cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations: Bangladesh (No. 1862), Peru (No. 1796), Romania (Nos. 1891 and 1904), Sudan (No. 1843) and Swaziland (No. 1884).

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

Case No. 1723 (Argentina)

12. The Committee last examined this case at its meeting in March 1996 [see 302nd Report, para. 37]. The case concerns the dismissals which occurred between 1 January 1959 and 12 December 1983 for political and trade union reasons of unionists employed in banking institutions, as well as the non-observance of Act No. 23523 which protects bank employees dismissed for political or trade union reasons. During its last examination, the Committee expressed the hope that the parties would be able to reach an agreement as quickly as possible.

13. In its communication dated 8 October 1996, the Bank Association states that, following a tripartite meeting on 23 May 1995 where the representatives of the employers and of the unions put forward their positions, and after sanctions had been imposed on the banks which violated Act No. 23523, the Government has not convoked any new tripartite meetings nor has it undertaken any legal proceedings with the goal of requesting the full implementation of Act No. 23523 (the complainant organization adds a list of dismissed workers and the names of the banks which have not applied Act No. 23523).

14. In a communication dated 5 February 1997, the Government states that it is going to transmit the list of dismissed workers sent by the complainant organization to the banks requesting them to provide information on the status of the re-examination of the persons mentioned with a view to a further evaluation of the situation, in line with the Committee's recommendations. The Committee takes note of this information. Recalling once again the importance it attaches to the effective implementation of Act No. 23523, the Committee requests the Government to continue to make all efforts to find a negotiated solution as quickly as possible.

Case No. 1777 (Argentina)

15. When examining this case at its meeting in November 1995, the Committee requested the Government to take measures for the immediate registration of the Congress of Argentine Workers (CTA) [see 300th Report, para. 73]. In its communications dated 24 May and 16 July 1996, the Congress of Argentine Workers (CTA) and the World Confederation of Labour (WCL) reiterated the procedures followed since May 1993 for the registration of the CTA and stated that, despite the recommendations of the Committee on Freedom of Association in this respect, the Government has not issued the corresponding administrative decision for registration. In its communication dated 14 January 1997, the Government states that the CTA has been made aware of the administrative action taken for the resolution of the matter which takes into account a legal opinion, and that this position was being studied. Moreover, the Government indicates that the CTA officers had held several meetings with the authorities of the Ministry of Labour concerning this question. While noting this information, the Committee deplores that the trade union organization in question has still not been registered despite the fact that three years have passed since the registration was requested. In these circumstances, the Committee, reiterating that this is a matter of serious violation of Convention No. 87, urges the Government once again to take the necessary measures for the immediate registration of the CTA.

Case No. 1837 (Argentina)

16. The Committee examined this case at its meeting in June 1996 [see 304th Report, paras. 40-56] and requested the Government to keep it informed of the developments in the legal proceedings brought in connection with the acts of violence that occurred during the demonstrations and strikes organized in the provinces of Tierra del Fuego, Corrientes and San Juan, especially as they relate to the death of the worker Víctor Choque, the injuries sustained by unionists Juan Roberto Vera and Alejandro Vásquez and the assault and denial of freedom of which Eloy Camus and Juan González were victim. The Committee also requested the Government to keep it informed of the legal proceedings brought by the police against the trade union leader Juan González.

17. In a communication dated 14 January 1997, the Government stated that: (i) the legal proceedings relating to the provisional detention of Juan González in the province of Corrientes are currently in the inquiry stage; (ii) in the affair of the homicide of Víctor Choque, a police officer was sentenced as the person responsible for his death to nine years in prison, but this verdict is being appealed and; (iii) it was not possible to obtain information on the subject of the legal proceedings relating to the abduction of Eloy Camus in the province of San Juan. The Committee takes note of this information and requests the Government to keep it informed of the results of these legal proceedings.

18. The Committee also requests the Government to keep it informed of the judicial inquiry under way concerning the injuries sustained by Juan Roberto Vera and Alejandro Vásquez, as well as the legal proceedings brought by the police against the trade union leader Juan González.

Case No. 1849 (Belarus)

19. At its meeting in March 1996, the Committee requested the Government to: repeal Order No. 158 of 28 March 1995 to the extent it includes organizations and enterprises not providing essential services as defined by the Committee; implement fully the decision of the Constitutional Court which declared certain articles of Decree No. 336 to be unconstitutional; take the necessary measures, without delay, to ensure the reinstatement in their jobs of all workers dismissed in connection with the strikes in Minsk and Gomyel in August 1995; immediately set up an independent commission of inquiry to clarify all the facts relating to this case and to keep it informed of the conclusions reached by the Procurator of the Republic and the commission of inquiry in this regard [see 302nd Report, para. 222].

20. In its communication of 9 September 1996, the Government indicates that the Constitutional Court considered a petition presented by the Permanent Commission on Social Policy and Labour of the Supreme Council of the Republic of Belarus on 20 June 1996 for an independent examination, with ILO experts, of the compliance of Order No. 158 with the Constitution and the laws of Belarus. According to the Government, the Constitutional Court ruled not to act on the petition and asked the Supreme Council to eliminate, by 15 September 1996, the contradiction between section 16(1) of the Act on the procedures for settling collective labour disputes which provides the list of enterprises where strikes are prohibited and section 13(2) of the same Act which stipulates the notification dates for strikes in those enterprises listed in section 16. Court procedure on the case has been suspended.

21. As concerns the dismissal of workers for having participated in strike action, the Government recalls that the illegal nature of the strikes in question had been recognized by the Minsk City Court of First Instance. It indicates that, on this basis, 15 persons were fired from Gomyel enterprise (trolleybus), five of whom have been taken back into the enterprise and another reinstatement is still under consideration. None of the Minsk Motor Enterprise employees have been re-employed and the Minsk City Executive Council has taken a number of measures to assist those fired at Minsk Metro with employment. In this respect, the Government also provides certain detailed information on court cases for reinstatement which had already been considered by the Committee in its first examination of the case.

22. The Committee notes this information. As concerns the Committee's recommendation to repeal from the list of Order No. 158 those enterprises and industries which it does not consider as essential services, while noting that the Constitutional Court has requested the Supreme Council to eliminate a contradiction between two sections of the Dispute Settlement Act, the Committee regrets that no steps have been taken to amend Order No. 158 to ensure that transport services, such as the Minsk Metro, are not excluded from the right to strike. The Committee therefore urges the Government to take the necessary measures to amend Order No. 158 in this respect and to keep it informed on the progress made in this regard.

23. As concerns the dismissal of workers participating in the August 1995 strikes in Minsk and Gomel, the Committee notes the Government's indication that five persons among 15 dismissed at the Gomel enterprise (trolleybus) have been reinstated. It notes with regret however that none of the other dismissed workers either at Minsk Metro or at Minsk Motor Enterprise have been reinstated and that the Government continues to insist that these dismissals are justified by the fact that the strike action was declared by the court to be illegal. The Committee finds itself obliged therefore to recall that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of whole or part of the population). The Committee has already indicated in the past that transport generally does not constitute an essential service. [See Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 526 and 545.] When last examining this case, therefore, the Committee had come to the conclusion that the strike action in question represented the exercise of legitimate trade union activity. Recalling that there remain 58 workers who were dismissed from Minsk Metro (according to the complainant's initial allegations) and at least ten trolleybus drivers in Gomel, the Committee must once again emphasize that the dismissal of workers for taking part in legitimate strike action constitutes anti-union discrimination in employment and requests the Government to ensure the immediate reinstatement in their jobs of all workers dismissed in connection with these strikes. The Government is requested to keep the Committee informed on the progress made in this regard.

24. The Committee regrets that the Government has not provided any information concerning its recommendation to implement fully the Constitutional Court decision which declared certain articles of Decree No. 336 to be unconstitutional. The Committee finds this all the more disturbing as it has been called upon to examine in this same report another complaint [see Case No. 1885] alleging the continuing implementation of the articles of this Decree which it has already concluded infringe trade union rights. The Committee refers to its previous conclusions concerning Presidential Decree No. 336 in its 302nd Report and calls upon the Government to take immediate steps to revoke those articles of the Decree which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard.

25. Finally, the Committee regrets that the Government has not provided any information concerning its recommendation that an independent commission of inquiry be established to clarify the facts relating to this case. While having noted in its previous examination of this case [see 302nd Report, para. 221] that an inquiry was being carried out by the Procurator of the Republic concerning the legality of actions taken by the law enforcement bodies, the Committee had considered that the questions raised by this case went beyond the mandate given to the Procurator. It must therefore request the Government once again to take steps for the immediate establishment of a commission of inquiry, the composition of which would be acceptable to all parties concerned, in order to clarify all the facts relating to this case. It requests the Government to keep it informed both of the conclusions reached as a result of the Procurator's inquiry, as well as of those of the commission of inquiry.

Case No. 1509 (Brazil)

26. The Committee examined this case concerning the murder of the trade union leader Valdicio Barbosa dos Santos at its meeting in November 1996 and requested the Government to continue to keep it informed of the legal proceedings under way [see 305th Report, para. 13]. In a communication dated 7 January 1997, the Government states that: (i) they still do not know where Marçal da Rocha, the presumed murderer in question, is; (ii) the defence of Mr. Romualdo Eustaquio Luiz Faria, presumed co-author of the murder, has been presented; (iii) in the legal proceedings, the hearing of the witnesses for the prosecution is now over. The Committee takes note of this information and requests the Government to keep it informed of the final results of these legal proceedings.

Case No. 1806 (Canada/Yukon)

27. At its meeting in November 1995 [see 300th Report, paras. 101 to 129], the Committee had considered that the Public Sector Compensation Restraint Act, 1994, went well beyond what it had previously considered as acceptable measures since it had the effect, amongst others, of extending the term of collective agreements for a period of three years in the education sector (up to July 1997) and of freezing for the same period all forms of remuneration. Furthermore, the Committee had regretted that the Government had not given priority to collective bargaining as a means of determining the wages of workers in the public sector of education and had urged the Government to refrain from having recourse to such measures in the future. In a communication dated 10 January 1997, the Government states that on 11 July 1996, it announced its intention to adopt new legislation the effects of which would be to limit the duration of the measures prescribed by the Act of 1994 to a two-year period and to provide for the return of collective bargaining in the education sector from July 1996. The Government adds that this measure reflects its commitment to give priority to collective bargaining and allow labour relations in the Yukon Territory, as regards the education sector, to return to normal. The Committee takes note of this information with satisfaction.

Case No. 1781 (Costa Rica)

28. At its meeting in November 1996, the Committee requested the Government to indicate the possibilities, according to the terms of the legislation, for applying the agreement of 16 May 1996 (in particular, section 3 concerning dismissals following collective disputes in Geest Caribbean, Ltd.) given the cessation of activities by the company in question in May 1996 [see 305th Report, paras, 17-20, approved by the Governing Body at its 267th Session (November 1996)].

29. In its communication of 6 January 1997, the Government stated that it had inquired of some previous legal representatives of the company and that they had indicated that the company as such did not exist in Costa Rica or elsewhere. Absent any such legal existence, any inquiry with a desired legal effect is impracticable. The Committee regrets having to note this information.

Cases Nos. 1594 and 1846 (Côte d'Ivoire)

30. During its last examination of Case No. 1594 in November 1996, the Committee requested the Government to keep it informed of developments with respect to the reinstatement of the workers dismissed from Irho Lame because of their trade union activities [see 305th Report, paras. 22-25].

31. In a communication dated 24 January 1997, the World Confederation of Labour (WCL) indicated that the workers concerned had still not been reinstated. No proposal for progressive reinstatement has been made by the Government. To the contrary, the workers were reportedly chased from the land where they get their food, some of whom were injured.

32. Furthermore, as concerns Case No. 1846 for which, in November 1996, the Committee had expressed its deep concern at the fact that several trade unionists were still being held in detention and had requested that measures be taken for their immediate release, designating them by name [see 305th Report, para. 25], the WCL indicated that Mr. Hassan Dabone and Mr. Diebre Boukary were still in the Maca prison.

33. Finally, the WCL adds that it is not able to communicate freely with the Dignité union because the telephone lines are regularly cut obstructing all contact with its affiliate for several days. This was the case at the beginning of December 1996 when the Government took measures for the holding of social elections at the autonomous port of Abidjan.

34. In a communication dated 24 February 1997, the Government emphasizes the fact that, contrary to the complainant's allegations, proposals for progressive reintegration of the workers dismissed from Irho Lame, enabling the reinstatement of at least 300 workers, have been formulated by the Minister of Higher Education and Scientific Research and by the management of the enterprise. Furthermore, the Government specifies that 167 workers were reinstated previously without condition.

35. The Government confirms that Hassan Dabone and Diebre Boukary have been kept in preventive detention while awaiting their next appearance before the courts. The material and physical harm suffered by the victims and the perfect state of health of the detainees justifies such a measure. Mr. Dabone and Mr. Boukary have been charged under Act No. 92-464 concerning premeditated violent misdemeanours and assault.

36. Finally, the Government recalls that consultations have been held in order for the elections at the autonomous port of Abidjan to take place in calm and serenity. In common agreement with the trade union organizations, the elections were set for 18 January 1997. In the Government's opinion, the strike at the autonomous port of Abidjan and the fact that some trade union organizations, such as the GODPAA and the SYLIDOPACI, were not able to prove their formation in conformity with the law, rendered elections on this date impossible. The Government considers nevertheless that this delay will enable these organizations to run in the next elections. The Government concludes by denying any allegations concerning the control of communications between the complainant organization and its affiliate, Dignité.

37. The Committee takes note of this information. As concerns the workers dismissed at Irho Lame because of their trade union activities, it urges the Government to take the necessary measures so that they be reinstated as soon as possible and to keep it informed in this regard. Furthermore, it once again requests the Government to keep it informed of the results of the social elections at the autonomous port of Abidjan. As concerns the preventive detention of Mr. Dabone and Mr. Boukary, the Committee recalls that the facts giving rise to this measure occurred in January 1995. In the Committee's opinion, preventive detention of such a long duration is wholly unjustifiable and it must therefore once again urge the Government to take the necessary measures for the immediate release of Hassan Dabone and Diebre Boukary. The Committee requests the Government to keep it informed of all developments in this regard. Finally, as concerns the restriction of communications between the Dignité union and the WCL, the Committee recalls that Article 5 of Convention No. 87, ratified by Côte d'Ivoire, provides that workers' organizations shall have the right to affiliate with international organizations of workers and requests the Government to assure that contacts between these organizations can be established without any hindrance from the authorities.

Case No. 1552 (Malaysia)

38. When it last examined this case at its November 1996 meeting [see 305th Report, paras. 43-46], the Committee noted with interest the Government's indication that the Court of Appeal had ordered the reinstatement of the 21 dismissed workers of Harris Solid-State Sdn-Bhd and requested the Government to keep it informed of any development as regards the implementation of this judgement. In a communication dated 31 January 1997 the Government confirms that 20 workers were indeed reinstated at Harris Solid-State as of 1 October 1996 and one worker was granted medical leave at the worker's request. As for the payment of back wages, the Government indicates that the legal counsel of the employer and of the workers are still in the process of negotiation and that it will keep the Committee informed of any further developments in this regard. The Committee notes this information with interest.

Cases Nos. 1687 and 1691 (Morocco)

39. At its last examination of these cases, the Committee requested the Government to undertake inquiries into the allegations of violations of freedom of association, including bodily injury, in the BISMA, SINET, and FILARSY enterprises [see 305th Report, paras. 397 to 412].

40. In its communication dated 2 December 1996, the Government states that the national legislation recognizes the right to strike and to bargain collectively for workers. The number of strikes called by trade unions in the private and public sectors without any measures being taken against the persons exercising this right is proof. Moreover, the Government adds that, in 1996, it came to an agreement with the social partners on the terms of a declaration according to which they restated their commitment to the free exercise of freedom of association, the conclusion of collective agreements and the reinstatement, within the framework of a tripartite investigatory and conciliation committee, of workers dismissed for their trade union activities. The Government specifies that the committee, which has begun its work, will have before it existing collective disputes and will try to identify solutions which are acceptable to all parties concerned. Finally, the Government indicates that the intervention of the police during certain conflicts was justified by the need to maintain public order and that charges were lodged only against those workers who had broken the law and committed acts of violence.

41. The Committee takes note of this information but nevertheless deplores that the Government has not furnished any specific information concerning the recommendations made when the case was last examined. It once again requests the Government to rapidly undertake an impartial and independent inquiry in order to fully clarify the facts, determine responsibilities and punish those responsible, and to provide, as a matter of urgency, the results of the investigations concerning: (a) Moukhbir Mohammed, General Secretary of the UMT union of the BISMA enterprise, who was reportedly arrested during a 48-hour strike at Sidi Slimane on 26 July 1994 and the subject of physical assault and; (b) the arrests during the same strike at the UMT local headquarters at Sidi Slimane of 11 workers, including the Deputy General Secretary of the local UMT union, Mr. Khallaf Saïd, the General Secretary of the UMT union in the BISMA enterprise, Mr. Moukhbir Mohammed, and his deputy, Mr. Bouzidi Cherkaoui. Finally, the Committee requests the Government to communicate information concerning the appeals lodged by four shop stewards at SINET (Bouna Houcine, Mouzoune Hassan, Attor Ahmed and Lachgar Brahim) and by the seven unionists at the FILARSY enterprise and to keep it informed of the judgements handed down in these cases. The Committee once again expresses the firm hope that, if the court concludes that these workers were dismissed as a result of their trade union activities, the Government will take the necessary measures to enable them to be reinstated in their jobs.

Case No. 1712 (Morocco)

42. At its last examination of this case, the Committee requested the Government to arrange for inquiries into: (a) the anti-union intimidation and pressure reportedly exerted on workers at the Plastima factory in Casablanca in May 1993 and at the Mansour El Dahbi Hotel in Marrakesh in April 1993 and; (b) the police intervention in strikes carried out at the above two places. Finally, the Committee urged the Government to provide information on the situation of named UMT activists who were reportedly incarcerated on the occasion of the strike at the Mansour El Dahbi Hotel [see 304th Report, paras. 365 to 380].

43. In its communication dated 23 January 1997, the Government recalls that the industrial dispute at the Plastima factory was based on the dismissal of 11 workers, three of whom were union representatives. The Government adds that the police had to intervene in this dispute in order to ensure public order and protection of the freedom to work. Finally, the Government specifies that the dispute was reportedly resolved by the signing of a protocol between the parties stipulating the reinstatement of five workers and the payment of indemnities to the other workers concerned. The latter reportedly lodged complaints with the first level court which rejected their appeal. The plaintiffs are still awaiting the results of the appeal which they lodged against this decision.

44. The Committee takes note of this information and requests the Government to transmit a copy of the judgement of the first level court, as well as the decision, once it is made, of the appeal court. It nevertheless deplores that the Government has not furnished any information concerning the situation of workers at the Mansour El Dahbi Hotel in Marrakesh. It requests the Government to keep it informed of the inquiries made into the acts of anti-union intimidation and pressure reportedly exerted on the workers of the hotel and on the police intervention during the strikes carried out there. Finally, the Committee urges the Government to provide information on the current situation of the UMT activists arrested in Marrakesh (Aboul Hanana Abdeljalil, Abou Nouass Latifa, El Hasnaoui Ahmed, Al Korssa Aberahmane, Boukentar Mohamed, Soulal Fatima, Boulal Zohra and Kati Mohammed).

Case No. 1793 (Nigeria)

45. During its last substantive examination of this case in June 1996 [304th Report, para. 13], the Committee urged the Government to take the necessary measures to ensure the immediate release of Mr. Kokori, General Secretary of NUPENG, to repeal immediately Decrees Nos. 9 and 10 dissolving the executive councils of NLC, NUPENG and PENGASSAN and to allow independently elected officials to exercise their trade union functions once again. Absent any response from the Government in the Committee's subsequent report of November 1996, the Governing Body decided to make a pressing appeal to the Government of Nigeria inviting it to respond as soon as possible to the repeated requests made since November 1995 urgently to authorize an ILO mission to examine questions related to past complaints and to visit without impediment trade unionists held in detention, so as to enable the mission to present a report as soon as possible to the Committee. The Government was sent a letter to this effect on 26 November 1996 and subsequently sent a reminder on 5 February 1997. No reply has yet been received from the Government.

46. Since its last examination of this case, several new decrees have been brought to the Committee's attention which appear to indicate an expansive and systematic approach to diminishing trade union rights in Nigeria. In this regard, the Committee would point out in particular the Trade Disputes (Essential Services Deregulation, Proscription and Prohibition from Participation in Trade Union Activities) Decree and the Trade Disputes (Essential Services) (Proscription) Order 1996 of 21 August 1996 which proscribe and prohibit the participation in any trade union activities of the Non-Academic Staff Union of Educational and Associated Institutions, the Academic Staff Union of Universities and the Senior Staff Association of Universities, teaching hospital, research institutes and associated institutions and dissolve the National Executive Council and the Branch Executive Councils operating within any university in Nigeria. Furthermore, the Trade Unions (Amendment) Decree No. 4 of 5 January 1996 restructures the previous 41 registered industrial unions into 29 trade unions affiliated to the Central Labour Organisation (named in the law) and omits from the list of registered organizations 25 previously registered and recognized trade unions of senior staff and ten employers' associations in violation of the right of both workers and of employers to establish and join organizations of their own choosing. Finally, Trade Unions (Amendment) (No. 2) Decree of 16 October 1996 (also referred to as Decree No. 26) amends the Trade Unions Act, inter alia, by granting the Minister the power to revoke the registration of any trade union in the interest of overriding public interest and substituting the right of appeal to the appropriate High Court ensured previously with a right to appeal only to the Minister. Among the various consequences of an administrative revocation of the certificate of registration of a union is the termination of automatic check-off of union dues and the decree provides a fine of 100,000 Naira and/or five years' imprisonment for the contravention of any of its provisions.

47. In the light of the above, the Committee notes with ever-increasing concern the persistent deterioration of trade union rights in Nigeria. Furthermore, it profoundly regrets the lack of cooperation on the part of the Government in respect of the Committee's recommendations in this case and of the Governing Body's repeated calls for the Government to authorize an ILO mission. The Committee finds itself obliged once again to reiterate in the strongest terms the Governing Body's appeal to the Government to accept an ILO mission at the earliest possible date to examine the outstanding matters of this case.

Case No. 1785 (Poland)

48. During its last examination of this case at its meeting in November 1996, the Committee requested the Government to ensure the equitable redistribution of assets between the NSZZ Solidarnosc and the Polish Trade Union Alliance (OPZZ) and requested the Government to keep it informed of any progress concerning the final redistribution. It also requested the Government to furnish a copy of the executive order to be issued by the Minister of Labour determining, in consultation with both trade union confederations, which assets would belong exclusively to one or the other confederation [see 305th Report, paras. 57-59].

49. In a communication dated 13 January 1997, the Government indicates that the executive orders to be issued by the Minister of Labour are being considered and may be completed after the adoption of the Budgetary Act for 1997 in February. This has not however hindered the implementation of the Act amending the Act concerning the restitution of assets forfeited by trade unions which came into force on 4 August 1996 and the Social Commission for Revindication has taken decisions up to the end of 1996 imposing upon the State Treasury an obligation of cash payment or compensation in other (non-cash) forms to various organizational units of NSZZ Solidarnosc. Cash payments may be already effected, whereas compensation in non-cash form will only be possible after the Council of Ministers has issued the necessary executory order. The NSZZ Solidarnosc and the OPZZ have been invited to designate their representatives to the commission responsible for making the inventory list of the real assets of the former trade union association. The commission is expected to begin its work once the Budgetary Act has designated funds for covering the cost of its functioning and the deadline for completion of its work, as provided for in the Act, is 30 June 1997. The Government adds however that the NSZZ Solidarnosc has taken a decision to apply to the Constitutional Tribunal concerning the constitutionality of the Act.

50. The Committee notes this information and expresses the firm hope that an equitable redistribution of the assets will be made between the two trade union confederations in the near future. It requests the Government to keep it informed of all developments in the implementation of the Act on the restitution of trade union assets and of any judgement from the Constitutional Tribunal concerning the constitutionality of the Act.

Case No. 1857 (Chad)

51. As concerns the participation of the Trade Union Confederation of Chad (CST) on joint or tripartite bodies, the Committee requested the Government, where there was any doubt as to the representativity of the CST, to undertake an objective and impartial determination of its degree of representativity and to take appropriate measures in the event that the CST turns out to be the most representative [see 305th Report, paras. 434 to 450]. According to the information provided by the CST in a communication dated 19 December 1996, the Committee is able to note an improvement in the situation. Indeed, the Ministry of the Public Service and Labour had requested the CST to designate its representatives to the High Committee for Labour and Social Security and to name its assessors to the labour courts. While noting this information with interest, the Committee also notes that, according to the CST, some problems still exist with respect to the naming of its representatives to other bodies or meetings such as the National Office for the Promotion of Employment. The Committee requests the Government to review this matter so that the CST may also name its representatives to these bodies. It requests the Government to keep it informed in this regard.

Case No. 1727 (Turkey)

52. At its meeting in November 1995, the Committee regretted that the Government had not furnished the information requested in paragraph 332(b) of its 295th Report concerning the functioning without hindrance of the EGITIM-IS union, the withdrawal of legal or administrative proceedings against trade unionists and the annulment of acts of anti-union discrimination. It requested the Government to provide this information as soon as possible [see 300th Report, para. 35].

53. In its communications of 10 January, 9 April and 6 December 1996, the Government stated that: (i) the criminal judicial authorities have decided to declare the cases against the 42 unionists (the names were cited by the Government) as without standing and not to pursue them for the acts committed in violation of the penal code during their union activities; (ii) a trial is under way against the trade union leader Mr. Altunya for having made statements to the press in violation of section 15 of Act No. 657 which prohibits public servants from making such statements; (iii) the administrative tribunal of the prefecture of Aydin has rejected the request to annul the withdrawal of Mr. Hüseyin Mercan's promotion; (iv) the administrative authorities have annulled the decisions to close and to prohibit the functioning of the branches of EGITIM-IS in the provinces of Van and Eskisehir, as well as in the Caycuma township.

54. The Committee takes due note of this information. Nevertheless, it reiterates the recommendations which it made during its first examination of this case [see 295th Report, para. 332(b)] and urges the Government to cease the judicial procedures against Mr. Altunya for having exercised his trade union activities and to annul the acts of discrimination taken against Mr. Mercan (transfer and suspension of promotion).

* * *

55. Finally, as regards Cases Nos. 1581 (Thailand), 1618 (United Kingdom), 1623 (Bulgaria), 1685 (Venezuela), 1719 (Nicaragua), 1725 (Denmark), 1726 (Pakistan), 1795 (Honduras), 1809 (Kenya), 1819 (China), 1824 (El Salvador), 1826 (Philippines), 1834 (Kazakstan), 1847 (Guatemala), 1856 (Uruguay), 1858 (France/Polynesia), 1870 (Congo), 1874 (El Salvador) and 1883 (Kenya), the Committee requests the Governments concerned to keep it informed of any developments relating to these cases. It hopes that these Governments will quickly furnish the information requested. Furthermore, the Committee has just received information concerning Cases Nos. 1698 (New Zealand), 1818 and 1833 (Zaire) and 1825 (Morocco) which it will examine at its next meeting.

* * *

Case No. 1867

Interim report

Complaint against the Government of Argentina
presented by
the State Workers' Association (ATE)

Allegations: Failure to reinstate a trade union official
suspended on account of his trade union activities

56. The State Workers' Association (ATE) submitted a complaint against the Government of Argentina for infringement of trade union rights in a communication in December 1995. The ATE sent additional information in a communication dated 3 April 1996.

57. The Government sent its comments in a communication dated 14 February 1997.

58. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

59. In its communications of December 1995 and 3 April 1996, the State Workers' Association (ATE) alleges that Miguel Hugo Rojo (Secretary General of the provincial Executive Council of the ATE) suffered reprisals for his trade union action during a collective dispute at the General Incomes Board of the Province of Salta in 1992. These consisted of: (1) a change in his workplace (he was transferred from being Inspector of the External Finance Department to the Department of Internal Auditing); and (2) suspension from his post without pay for 90 days (for having refused to change his workplace), as a result of a summary indictment. Both measures hindered the freedom of movement of the person concerned, thus preventing the exercise of his rights with respect to freedom of association. Moreover, Miguel Hugo Rojo has not received his wages since then because he has still not taken up his post.

60. As a result of these measures, Miguel Hugo Rojo lodged successive appeals which went as far as the Supreme Court, which decided that as he was a provincial official, he would have to exhaust all the administrative procedures and submit his case to the Administrative Court. The first judgement handed down by the courts, however, had ordered the reinstatement of the person concerned in his job.

61. The complainant organization feels that the constitutional and legal provisions pertaining to protection against anti-union discrimination were incorrectly interpreted and applied (in particular, section 47 of Act No. 23551, concerning occupational associations -- considered not applicable to the public employees of the federal State of Salta by the judicial authorities -- which provides for swift judicial proceedings in the event of an obstruction to the free exercise of trade union rights.

B. The Government's reply

62. In its communication of 14 February 1997, the Government stated that the order which suspended Mr. Hugo Rojo (Decree No. 1127/92) was not brought into question in the appeal which he lodged as it was an administrative order which benefits from the presumption of legitimacy. According to national jurisprudence, as a consequence of this presumption, judges are prohibited from issuing decrees ex officio invalidating such administrative orders and their illegitimacy must be proven. In this case, the State does not need judicial authorization for the suspension of functions to the extent that Decree No. 1127/92 has not been called into question. Moreover, at no point in time was it raised in the allegations that Mr. Hugo Rojo was separated from his post due to his trade union membership or participation in trade union activities.

C. The Committee's conclusions

63. As regards the allegation that legal standards were incorrectly applied or interpreted by the judicial authority, to the effect that section 47 of Act No. 23551 concerning occupational associations (which provides for a speedy judicial proceeding in the event of obstruction of freedom of association) is not applicable to public officials in the Province of Salta and that, under the provincial legislation of Salta, employees must exhaust all administrative procedures before lodging an appeal with the Administrative Court, the Committee notes that the position of the complainant and the Government are contradictory. The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable.

64. The Committee nevertheless recalls that irrespective of the procedural or substantive laws applying to public officials or employees in provinces of a federal State, it is bound to examine whether the actual alleged anti-union discrimination measures are or not in accordance with the provisions of ratified ILO Conventions and the principles of freedom of association.

65. In this respect, the Committee notes that, according to the complainant organization, the decision to transfer the trade union official Miguel Hugo Rojo from one workplace to another and the subsequent measures taken against him were on account of his trade union action in a collective dispute which began at the beginning of February 1992. According to the documentation presented by the complainant, strikes took place and accusations were made of financial irregularities and corruption -- such as an administrative resolution which changed the rules pertaining to the "incentive fund" for workers. The Committee also notes that the Government denies that the measures taken against Miguel Hugo Rojo had anti-union motives. The Committee nevertheless notes that the administrative resolutions containing the grounds for the transfer of Miguel Hugo Rojo and the penalties against him, which have been communicated by the complainant organization, indicate the following:

for reasons of service and with a view to consolidating its skilled staff, the internal auditing department temporarily transferred the employee Mr. Rojo -- tax inspector -- to another department;
the person concerned refused to comply with this order, despite the fact that it was repeated; he then put in writing that the person who had decided the transfer "lacked the necessary moral fibre to conduct the organization and was totally unable to function", which caused "moral damages to his hierarchical superior, undermining his honour and reputation" ("slander");
after having "failed to fulfil his duties" and "being disrespectful and insulting to his superiors", which made him "subject to disciplinary measures", he was suspended;
"the failure to carry out services individually and on a regular basis constitutes a form of misconduct subject to a penalty, particularly in view of the fact that the accused clocked in and out of work with a card and failed to carry out the services he was supposed to do, which implies fraudulent behaviour and a violation of article No. 11(a) of the Statutes; this is tantamount to a desertion of duties which gives rise to the suspension of an official (article 36(c)) under these Statutes";
"another charge against the accused is the failure to comply with the requirement under article 11(k) of the Statutes, in other words to maintain a respectful attitude; indeed, on one occasion he displayed physical violence and, on others, made verbal threats".

66. The Committee notes that the versions given by the complainant and the administrative authority concerning the transfer of and the penalties imposed on the trade union official Miguel Hugo Rojo are contradictory.

67. In the numerous cases involving allegations of anti-union discrimination that it has examined, the Committee has consistently stressed that no person shall be prejudiced in employment by reason of his or her 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 (revised) edition, 1996, para. 690]. This protection should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers [see Digest, op. cit., para. 695]. In addition, the remedy of reinstatement should be available to those who were victims of anti-union discrimination [see Digest, op. cit., para. 755].

68. In the case at hand, the Committee considers that the available information is insufficient to permit a determination of whether anti-union motives underlay the transfer of Mr. Miguel Hugo Rojo. Under these circumstances, in order to arrive at its conclusions in full knowledge of the facts, the Committee requests the complainant and the Government to provide supplementary information, in particular regarding the administrative acts and decisions, as well as the judgements that have been rendered on this subject.

The Committee's recommendation

69. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:

In order to arrive at its conclusions in full knowledge of the facts, especially concerning whether the transfer of Miguel Hugo Rojo was for anti-union reasons and concerning his non-reinstatement, the Committee requests the complainant and the Government to provide supplementary information, in particular regarding the administrative decisions and judgements that have been rendered on this subject.

Case No. 1862

Report in which the Committee requests to be
kept informed of developments

Complaint against the Government of Bangladesh
presented by
-- the International Confederation of Free
Trade Unions (ICFTU) and
-- the International Textile, Garment and Leather
Workers' Federation (ITGLWF)

Allegations: Serious acts of anti-union discrimination,
physical assaults of workers and trade unionists,
attack on trade union premises

70. The Committee already examined the substance of this case at its May 1996 meeting, when it presented an interim report to the Governing Body [see 304th Report, paras. 57 to 96, approved by the Governing Body at its 266th Session (June 1996)].

71. In communications dated 11 June 1996 and 30 January 1997, the International Textile, Garment and Leather Workers' Federation (ITGLWF) presented new allegations concerning further violations of trade union rights by the Government. The Government supplied further observations on the case in communications dated 3 September and 30 October 1996.

72. Bangladesh has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

73. The International Confederation of Free Trade Unions (ICFTU) presented allegations to the effect that the Government had violated freedom of association principles by failing to provide protection to workers and trade unionists in several cases of employer resistance to the establishment of a new union in the garment industry in Bangladesh and to the carrying out of union activities. The ICFTU alleged that there had been industry resistance to the Bangladesh Independent Garment Workers' Union (BIGU) from the moment it had been formed in December 1994. In particular, there had been systematic violations of workers' rights at the Palmal Knitwear Factory in Dhaka. The repeated violations occurring there included beatings, forced resignations, dismissals, blacklisting, threats and other types of intimidation of workers and their family members as well as an attack on the office and study centre of BIGU in Dhaka. In order to defend workers' rights, BIGU had been involved, since the beginning of 1995, in a number of labour court cases involving garment companies.

74. The Government, for its part, indicated that it had carried out a thorough inquiry concerning the allegations made. Following this inquiry, however, it could not detect any violation of trade union rights. It rejected any anti-union motives on the part of the employer, basing itself almost exclusively on information provided by the company itself. Moreover, the Government pointed out that, according to the management of the company, the allegations were promoted from outside so as to damage the business prospects of the garment industry which was entirely export-oriented.

75. At its June 1996 Session, in the light of the Committee's interim conclusions, the Governing Body approved the following recommendations:

The Committee urges the Government to extend its inquiry in order to clear up contradictions in the evidence provided so far in this case generally and to give a balanced view which takes account of the position of the complainant to a larger extent.
The Committee requests the Government to indicate whether BIGU has applied for registration and if this is the case to provide information on the progress of BIGU's application and to communicate the result of the registration procedure as soon as it is available.
The Committee requests the Government to further investigate the motives of Palmal for sending photographs of workers to other employers and to keep it informed.
The Committee requests the Government to further clarify the circumstances leading to the terminations of the employment of: (a) Mr. M. Rahman and Mr. N. Ahmed, (b) of eight BIGU members, and (c) of two women workers and to keep it informed.
The Committee requests the Government to further investigate the allegation that 11 BIGU members have been discredited and that four BIGU members were threatened with transfer. It also asks the complainant to supply more ample and precise information on the latter allegation.
The Committee requests the Government to take the necessary steps to clarify Ms. Kalpona's employment situation, to assure that she can continue to work in her post at Palmal, if she so wishes, and to make sure that she is not discriminated against because of her trade union activities.
The Committee requests the Government to immediately institute an independent judicial inquiry into the attack on the trade union premises and the assault on trade unionists on 21 November 1995 and to keep it informed.
The Committee requests the Government to provide copies of the decisions of the labour courts relating to this case as soon as they become available.

B. The Government's reply

76. In its communication of 30 October 1996, the Government indicates that an Inquiry Committee was established vide office order No. POKO/SRAMA-2 (17) 96/51 dated 20 July 1996 of the Ministry of Labour and Manpower in order to look more deeply into alleged violations of freedom of association by Palmal Knitwear Factory Ltd. (hereinafter "Palmal"). The Inquiry Committee convenor issued a notice upon the President of BIGU to come up with all relevant papers and witnesses, if any, on 14 September 1996 in the office of the Director of Labour. A similar notice was also served upon the Managing Director of Palmal. The Government states that both parties, who were present on the fixed date, as were Inquiry Committee members, gave their respective statements. Both parties were allowed to cross-examine the other's statement so that the Inquiry Committee would have a fair and balanced view of the issues raised. Finally, a joint statement was recorded and read over to both parties, and being satisfied, they signed it. The Government states that the findings of the Inquiry Committee, in respect of the recommendations of the Committee on Freedom of Association, are as follows.

77. First of all, BIGU applied for registration on 18 May 1995. Its application was rejected by the Registrar on 14 June 1995 on the ground that it failed to fulfil the conditions laid down in section 7(2) of the Industrial Relations Ordinance, 1969 (hereinafter "IRO") and also because of the absence of any legal provision enabling the registration of a trade union on a nationwide basis when there is more than one employer. The number of employers involved in this case was 122. Moreover, there had been a court verdict debarring registration of one union comprising workers from different establishments owned by different employers. BIGU appealed to the second Labour Court in Dhaka against the rejection order of the Registrar. The case is still pending in the Labour Court.

78. Regarding the motives of Palmal for sending photographs of workers to other employers, the Inquiry Committee questioned the Managing Director of Palmal, Mr. Nurul Haque Sikdar, in this connection. The Government states that Mr. Sikdar denied this allegation altogether. The complainant also failed to produce any documentary evidence in this respect. The Government adds that according to the Managing Director, the management had had information that some of the absentee workers of Palmal were working in some other factories. To confirm this information, the management had sent a letter only to those factories where the absentee workers were reportedly working. But there was no proof that the management had sent photographs of the absentee workers to those factories. Thus, according to the Government, there appeared to be no other motive behind the management's actions other than to confirm the absentee workers' employment in the other factories so as to initiate departmental and legal action against them.

79. Regarding the circumstances leading to the termination of employment of Mr. M. Rahman and Mr. N. Ahmed, the Government refers to the Managing Director's statement that neither of them had been terminated from service. They had voluntarily resigned. The Managing Director submitted the photocopy of the resignation letters of the two workers.

80. As regards the alleged termination of employment of eight BIGU members, the Government indicates that the Managing Director stated that these workers had not been dismissed from service. They had remained absent without the management's authorization for a long time. The management had called all of them to resume their duties but they did not turn up. They had submitted their grievances to the competent authority who replied to their grievances. But they were not satisfied and filed cases in the Labour Court against the management. Those cases are still pending in the Labour Court for disposal. Later two BIGU members withdrew their cases and voluntarily resigned from service.

81. As regards the forced resignation of two women workers, the Government indicates that the Managing Director stated that they were dismissed after exhausting all the procedures as provided for under the Employment of Labour Act, 1965.

82. Regarding the allegation that 11 BIGU members had been discredited, and that four of them were threatened with transfer, the Government points out that the Managing Director denied this allegation during the inquiry. When the complainant was asked about this, she failed to produce any witness and supporting documentary evidence in this respect. On the other hand, the Managing Director produced a paper sent to the Human Rights Organization by 155 workers of Palmal alleging that the 11 absentee and dismissed workers of Palmal, in connivance with some national and international agencies, were working against the interest of the workers as well as of the factory. It was alleged by the complainant that the management of Palmal wrote a letter to the Human Rights Organization in this respect but she could not produce any document.

83. Regarding the threat of transfer of four workers, namely Mr. Badal (mechanic), Mr. Nurul Islam (supervisor), Mr. Shahidul Islam (packing man), and Mr. Hashem (packing man), the Government indicates that the complainants could not produce any document in support of the allegation. The Government points out that the Managing Director had indicated that in the case of technical workers it was general practice that such workers could be transferred from one factory to another (with the same employers and producing similar type of goods) with their consent. But till today, none of them had been transferred.

84. As regards the dismissal of Ms. Kalpana, the Government indicates that according to the Managing Director, she had been dismissed from service after exhausting all the legal procedures as laid down in the Employment of Labour Act, 1965. In reply, Ms. Kalpana stated that she did not even get any notice. The Managing Director stated that she was served notice through registered post at her address available in the factory's office record. But she refused to accept it and the notice was returned to the factory which was produced before the Inquiry Committee. In spite of all this, the management was still agreeable to appoint her as per her qualifications in Palmal but she wanted to impose certain conditions which were contradictory to prevailing labour laws. Ms. Kalpana is not unemployed at present. The Managing Director of Palmal stated that she had worked in Jamuna Knitting and Dyeing Garments Ltd. from 9 October 1995 as machine operator and later on she had also worked in Southern Services Ltd. from 19 December 1995 as junior operator. The Managing Director further claimed that she was now working in AAFLI with a monthly salary of tk3,000. But Ms. Kalpana denied this.

85. Regarding the alleged attack on trade union premises, the Inquiry Committee held an on-the-spot inquiry at 200, Santibag, Dhaka where the BIGU (unregistered) office had been established. At the time of the inquiry, the organizing secretary, Nazma Sheikh and one person were present. But neither of them could confirm that the alleged attack had been carried out by the employers of Palmal Knitwear Factory Ltd. The president of BIGU stated that an FIR had been lodged with the Motijheel Police Station for the alleged attack but she failed to produce any document in support of her statement.

86. Over these various issues, from the workers' side, IRO cases Nos. 48/95, 49/95, 50/95, 51/95, 53/95, 54/95 and 55/95 were filed in the labour courts, of which IRO cases Nos. 49/95 and 53/95 had been withdrawn by the complainant. The remaining cases are still pending for disposal in the labour courts as is IRO Case No. 74/95. Another IRO case No. 95/95 has also been withdrawn by the complainant. The Government states that the outcome of the pending cases will be made available through gazette notification once the labour courts concerned have handed down their respective decisions.

C. The complainant's further information

87. In its communication dated 11 June 1996, the ITGLWF indicates that its latest complaint relates to the situation at Saladin Garments Ltd. where workers have over the past couple of months suffered intimidation and harassment and have faced very severe threats. The circumstances are as follows. The workers of Saladin Garments Ltd. were preparing themselves for the formation of a union from January 1996. For this process they were collecting "D" forms -- forms signed by workers indicating they want a particular union. These forms are required by the Government to register a trade union. This information reached the management of Saladin Garments Ltd.

88. On 9 April 1996 the workers of Saladin filed their application for union registration with the Registrar of Trade Unions. Several days prior, factory management started to threaten workers involved in organizing and demanded that they cease their union activities and that they divulge the names of all workers who had signed "D" forms. On 8 April, it is alleged that production manager, Mr. Nannu, mechanic in charge, Mr. Jainal, and floor in charge (finishing), Mr. Monir, took a worker named Chand Mia to the office and pressured him to give the list of the workers involved in the union process. He was detained in the room until 6.30 p.m. On 9 April, it is alleged that production manager Nannu along with his aides again took Chand Mia to his room and detained him. He was again interrogated about the names of workers who had signed up for the union. During the interrogation, he was slapped, told "we'll see how you form a union" and Production Manager Nannu held a blade to his throat. A General Diary No. 522 dated 9 April 1996 was lodged in Sobuj Bagh Police Station.

89. The workers wrote a letter to the factory Managing Director, Mr. Abdus Salam Murshedi, informing management that they were exercising their legal right to form a union. The letter included the names of the workers involved in the formation of the union and asked for management's cooperation. (The letter was written on 8 April 1996 and reached the factory approximately two days later.) After receipt of the said letter it is alleged that Mr. Abdus Salam Murshedi called Ms. Asma, President of the union, into his office. With him one Mr. Jibon (an outside thug of Saladin Garments) and Mr. Seraj, administrative officer started interrogating Asma about her involvement in union affairs. The Managing Director told Ms. Asma not to form any union with AAFLI's assistance since AAFLI was destroying the garment industry. He said if workers wanted to form a union, management would help them to do so. The Managing Director told Asma if she did not refrain from her union activities, the workers "will see five dead bodies after the (national) election". He then stated "the lawyer [of BIGU] has already been attacked but still she did not refrain from her work. She shall be punished for this." (In an apparent reference to the 21 November 1995 attack on the BIGU office in which the lawyer was doused with petrol and terrorized by armed thugs.)

90. Thereafter the management started issuing show-cause notices (misconduct letters) and other warning letters to the workers involved directly in the union. The management started making the women workers work at night on a regular basis. Sometimes a single woman worker was made to work in an isolated place without security. (Night work for women is prohibited under the Factories Act of 1965.) Women workers sent letters to the Managing Director protesting night work, but management continued with the practice. Intimidations, threats and public humiliations are now routine and resulted in the resignation of the union General Secretary, Ms. Shuli, and another woman union member. The ITGLWF contends that even if these allegations are only partially correct, they represent a very severe abuse of basic workers' rights. It insists that these workers should have the protection of the authorities and are afforded the right to organize in accordance with the laws of Bangladesh and relevant ILO Conventions. The women workers who resigned as a result of the intense intimidation and harassment they faced should be reinstated.

91. In its communication of 30 January 1997, on the Committee's request, the ITGLWF provides more information regarding the threat of transfer of four BIGU members as requested to do so by the Committee during its previous examination of this case [304th Report, para. 96(e)]. The ITGLWF indicates that in late July 1995, four active BIGU members were told by factory General Manager, Mr. Shamim Reja Pinu, that as of August 1995 they would be transferred to another factory in the Palmal group of companies which was located approximately 25 km from their current workplace and homes in Dhaka. On 28 July 1995, the workers sent letters to management explaining the economic hardships the transfer would pose. Later, following external pressure, the transfer order was abandoned.

D. The Government's further reply

92. In its communication of 3 September 1996, the Government indicates that the ITGLWF's complaint has already been inquired into by the Department of Labour. It provides a summarized version of the inquiry report as follows.

93. As regards the formation of a trade union by the workers of Saladin Garments Ltd., it is a fact that the process started since January 1996 and the application for registration of the newly formed union was actually filed on 3 April 1996 with the Registrar of Trade Unions (RTU), Dhaka Division. The RTU processed the said application as per sections 7 and 9 of the Industrial Relations Ordinance (IRO) 1969 and rejected the same on 3 June 1996 as per section 10 of the IRO 1969 for not meeting the legal requirements. The alleged complaint that the workers involved in the process of forming a trade union were harassed and intimidated by the management had not been proved during the inquiry.

94. As regards the incident of torturing in various ways of Mr. Chand Mia, a worker, on 8 and 9 April 1996 by the Production Manager, Mr. Nannu, mechanic in charge, Mr. Jainal, and floor in charge (finishing), Mr. Monir, this also could not be proved at the time of the inquiry. Even Ms. Asma, President of the union, admitted that she did not see Mr. Chand Mia being physically tortured and that she simply learnt of it. The police had yet to take any action on General Diary No. 522 dated 9 April 1996.

95. The allegation that management advised Ms. Asma, President of the proposed union not to form a union with the assistance of outsiders is admitted to by the management. But no evidence could be found during the inquiry that Ms. Asma was issued show-cause notices only because of her involvement in the establishment of a trade union. She, along with other workers, were issued show-cause notices for various other reasons as per the existing laws of the country.

96. As regards the allegation that women workers were made to work on a regular basis in an isolated place without security, the Government indicates that the management partly denied the allegation. It stated that on an emergency basis, women workers were sometimes required to work at night and that they were paid overtime allowance for the additional work. The allegation that a single woman worker was required to work at night was termed as ridiculous by the management, as in a garment factory, the work is done in shifts by a group of workers working together. Finally, the Government points out that in the management's view, as the two women workers had resigned voluntarily, there was no room for their reinstatement.

97. In addition to the above findings, the Government states that in the garment sector in Bangladesh, efforts are being made to enforce legal provisions under the Factories Act, 1965 and the Shops and Estts. Act, 1965, as strictly as possible. No trade union of workers or employers is discouraged to be registered under the Industrial Relations Ordinance, 1969. The Government only ensures that the union is registered in accordance with the requirements of the IRO, 1969. Moreover, any union, aggrieved by any decision of a RTU, has the right to appeal against him in the Labour Appellate Tribunal.

E. The Committee's conclusions

98. The Committee notes that there are two sets of allegations in this case: first those that relate to the trade union situation at Palmal Knitwear Factory Ltd. which were already examined by the Committee and secondly, those relating to the trade union situation at Saladin Garments Ltd. The Committee proposes to deal first of all with the allegations concerning violations of freedom of association by Palmal Knitwear Factory Ltd.

Trade union situation at Palmal Knitwear Factory Ltd.

99. Before examining the matters at issue individually, the Committee recalls that in view of the number and seriousness of the allegations ensuing from this complaint, it had requested the Government, during the previous examination of this case, to extend its inquiry in order to clear up contradictions in the evidence provided by the complainant and the management thus far. In this respect, the Committee notes that an Inquiry Committee was established by the Ministry of Labour and Manpower on 20 July 1996 to look more deeply into alleged violations of freedom of association by Palmal Knitwear Factory Ltd. (hereinafter "Palmal"). The Committee further notes from the Inquiry Report provided by the Government that the President of BIGU, Ms. Kalpana Akhter and BIGU activist, Ms. Hasna Hena as well as the Managing Director of Palmal, Mr. Nurul Haque Sikdar presented their respective statements to the Inquiry Committee whose members were comprised of Mr. Mella Golam Sarwar (Director of Labour), Mr. Khurshid Alam Chawdhury (Joint Director of Labour) and Mr. Lokman Hekim Talukder (Assistant Chief of Labour).

100. The Committee notes with regret however that although both parties signed a joint statement pursuant to this second inquiry, the latter still did not resolve the contradictory statements provided by the two parties. It is the Committee's understanding that this was largely due to the fact that whenever the Managing Director denied an allegation, the complainant failed to produce any documentary evidence to substantiate the allegation in question. The Committee would remind the Government, however, that in such instances it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim. The Committee also notes the inconsistency in the evidence given by the Managing Director which affects the credibility of his evidence. Moreover, since the allegations in this case concern beatings, forced resignations, dismissals, blacklisting, threats and other types of intimidation of workers and their family, the Committee must once again draw the Government's attention to the importance it attaches to the principle that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of unions, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47].

101. The Committee further notes that several cases, mainly IRO Cases Nos. 48/95, 50/95, 51/95, 54/95, 55/95 and 74/95, are still pending in labour courts concerning incidents referred to by the complainant. The Committee requests the Government to provide copies of these decisions as soon as they are handed down.

Registration of BIGU

102. As regards the registration of BIGU as a trade union, the Government states first of all that BIGU's application was rejected by the Registrar on 14 June 1995 on the ground that it failed to fulfil the conditions laid down in section 7(2) of the IRO. The Committee would nevertheless draw the Government's attention to the fact that for several years now, the Committee of Experts on the Application of Conventions and Recommendations has been asking the Government to review section 7(2) and 10(1)(g) of the IRO in order to bring them into conformity with Article 2 of Convention No. 87. These two provisions respectively impose a membership requirement of 30 per cent of the total number of workers employed in the establishment or group of establishments concerned for a union to be registered, and permit dissolution if membership falls below that level (see observation, Report III, Part 4A of 1997, page 151 of the English text). The Committee, like the Committee of Experts, requests the Government to amend its legislation in this respect.

103. Another reason put forward by the Government for non-registration is the absence of any legal provision enabling the registration of a trade union on a nationwide basis whose workers are employed by several employers and a court verdict barring registration of a union comprising workers from different establishments owned by different employers. However, the Committee has considered on previous occasions that the free exercise of the right to establish and join unions, implies the free determination of the structure and composition of unions and that under Article 2 of Convention No. 87, workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and different cities [see Digest, op. cit., paras. 275 and 283].

104. The Committee therefore requests the Government to take the appropriate steps to ensure that the appropriate legislative amendments, in the light of the principles expressed above, are made to the IRO so that workers have the right to establish and join the organization of their own choosing without any restrictions. It urges the Government to take appropriate steps to ensure that BIGU is granted registration as a trade union organization in conformity with the requirements of Convention No. 87 which has been ratified by Bangladesh. The Committee requests the Government to provide information on any progress made in this regard and draws the attention of the Committee of Experts to this aspect of the case.

Blacklisting of workers and trade unionists

105. The Committee notes that during the course of the second inquiry, the Government indicates that the Managing Director of Palmal completely denies having sent photographs of workers to other employers. The Government states that the management had only wanted to confirm information that some absentee workers of Palmal were reportedly working in some other factories. The management had therefore sent letters (but no photographs) to those factories to confirm the absentee workers' employment there. The Government concludes that since the complainant did not produce any documentary evidence to substantiate the allegations of blacklisting by management, there was no other motive behind the management's actions. The Committee notes however, that the management's statement is in direct contradiction with what it had said during the course of the first inquiry and the previous examination of this case. At that time, the Palmal management had admitted to sending letters with the photos of the absentee workers, although it maintained that this was done only to confirm that absentee workers were employed in other factories [304th Report, para. 76]. In view of this contradiction, the Committee would recall that workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy [see Digest, op. cit., para. 710]. The Committee considers that these allegations, if proven, constitute a violation of freedom of association principles.

Intimidation, beating and resignation of Mr. M. Rahman and N. Ahmed

106. Regarding the circumstances leading to the termination of employment of Mr. M. Rahman and Mr. N. Ahmed, the Committee notes with concern that the Government merely repeats the statement of the Managing Director of Palmal to the effect that neither of the above had been terminated from service; they had resigned voluntarily. The Government adds that proof of this was the photocopy of resignation letters of the two workers submitted by the Managing Director. In view of the seriousness of the allegations according to which these two BIGU activists were both intimidated, beaten and forced to resign, the Committee once again draws the Government's attention to the fundamental principle that intimidation, assaults on the physical integrity of trade unionists and forced resignations constitute a serious violation of freedom of association [see Digest, op. cit., paras. 46, 47 and 702]. The Committee requests the Government to ensure the reinstatement of these persons in their jobs, if they so wish.

Termination of employment of eight BIGU members

107. As regards the reasons for terminating eight BIGU members, the Committee notes that the Government in its inquiry report, refers to the Managing Director's statement that these eight workers had not been dismissed but rather had been on long unauthorized absence from duty. The Committee notes that although the Government does not mention the complainant's point of view in this matter, the complainant had alleged, during the previous examination of this case by the Committee, that these eight BIGU members had been terminated as a consequence of defending workers' rights on compensation issues, i.e. in the exercise of trade union activities [304th Report, para. 64]. The Committee notes the Government's statement that there are now six cases pending in the Labour Court relating to this incident. In view of the contradictory statements as to the reasons for terminating these eight BIGU members, the Committee once again recalls that no person should be dismissed or prejudiced in his or her employment by reason of legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [see Digest, op. cit., para. 696]. The Committee requests the Government to keep it informed of the outcome of judgements handed down in the cases pending in the labour courts and to take measures to reinstate the workers concerned if their dismissals are proven discriminatory.

Discrediting of 11 BIGU members and threat of transfer
of four BIGU members

108. The Committee notes that there are still conflicting statements on whether the company in question had attempted to discredit 11 BIGU members by exercising pressure on 155 workers to sign blank sheets of paper which were then attached to a cover page condemning the activities of these 11 BIGU members who had brought law suits against the company. In view of the failure to clear up this matter during the course of the Government's second inquiry, the Committee would recall that in such instances it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he or she has been the victim.

109. Regarding the threat of transfer of four BIGU members, namely Messrs. Badal, Nurul Islam, Shahidul Islam and Hashem, the Government indicates that the complainant could not produce any evidence in support of this allegation during the course of the inquiry. The ITGLWF contends, however, that these four BIGU members were threatened with transfer to another factory in the Palmal group of companies which was located approximately 25 km from their current workplace and homes in Dhaka. Later, following external pressure, the transfer order was abandoned. In view of the contradiction between these two statements, the Committee recalls that threats of transfer, depending on the circumstances, may constitute anti-union discrimination in employment [see Digest, op. cit., para. 695].

Forced resignation of two women workers

110. The Committee notes that the Government, on the basis of its inquiry, indicates that the two women workers were dismissed after exhausting all the procedures provided for under the Employment of Labour Act, 1965, and that they were therefore not forced to resign under pressure of blacklisting because of their contacts with BIGU. The Government does not however explain for what reason these two women workers were dismissed. The Committee would draw the Government's attention to the fact that it considers the allegation of forced resignation under pressure of blacklisting, if proven, to constitute a severe form of anti-union discrimination.

Attempted forced resignation and dismissal of Ms. Kalpana

111. As regards the attempted forced resignation and dismissal of Ms. Kalpana, the Committee notes that Ms. Kalpana is no longer employed at Palmal despite her wishes to the contrary. (This was admitted to by the Managing Director who stated during the course of the inquiry that she was served notice through registered post but that she refused to accept it). Moreover, the Committee notes that during the inquiry, the Managing Director insisted that she was now employed elsewhere whereas Ms. Kalpana denied this. The Committee regrets that the inquiry failed to clarify this matter, especially since the Committee had previously noted that Ms. Kalpana was exposed to serious difficulties in her employment because of trade union activities [304th Report, para. 90]. The Committee would therefore reiterate its request to the Government to take the necessary steps to clarify Ms. Kalpana's employment situation, to ensure that she can continue to work in her post at Palmal, if she so wishes and to make sure that she is not discriminated against because of her trade union activities. The Committee requests the Government to keep it informed of developments in this regard.

Attack on trade union premises and physical assault
on trade unionists

112. The Committee regrets that the Government did not comply with the Committee's earlier request to institute an independent judicial inquiry into the attack on trade union premises on 21 November 1995 and the physical assault on trade unionists present [304th Report, para. 96(g)]. Furthermore, the Committee notes with concern that the second government inquiry has not shed any further light on this serious incident. Deploring this severe violation of trade union rights, the Committee recalls that attacks against trade unionists and trade union premises and property constitute serious interference with trade union rights. Criminal activities of this nature create a climate of fear which is extremely prejudicial to the exercise of trade union activities [304th Report, Case No. 1862 (Bangladesh), para. 94].

* * *

113. In view of the fact that two inquiries carried out by the Government have failed to resolve the contradiction in the evidence provided by the respective parties, the Committee would request the Government to institute an independent judicial inquiry into the various allegations made and to keep it informed of the results thereof. The proceedings of such an inquiry could possibly be facilitated by calling as witnesses BIGU members who were allegedly subjected to various acts of anti-union discrimination.

Trade union situation at Saladin Garments Ltd.

114. As regards the ITGLWF'S allegations concerning the trade union situation at Saladin Garments Ltd., the Committee notes the Government's statement that the Department of Labour has already carried out an inquiry into the ITGLWF'S complaint. The Committee notes with serious concern however, that this government inquiry, like the ones carried out with regard to the trade union situation at Palmal, rejects any anti-union motives on the part of the employer. The Committee regrets that the Government, during the course of the inquiry, based itself almost exclusively on information provided by the management of Saladin Garments Ltd. and did not take account of the position of the complainant to a larger extent. In view of the seriousness of the allegations made -- severe harassment, death threats, physical assaults, forced resignations and other types of intimidation of workers at Saladin Garments Ltd. -- the Committee must once again draw the Government's attention to the importance it attaches to the principle that the rights of workers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of unions, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 47]. In the light of this principle, the Committee requests the Government to institute a genuinely independent judicial inquiry into the various allegations made and to keep it informed in this regard.

Registration of new union at Saladin Garments Ltd.

115. The Committee notes the Government's statement that the application for registration of a newly formed union at Saladin Garments Ltd. was rejected by the Registrar on 3 June 1996 for not having met the requirements of sections 7, 9 and 10 of the IRO 1969. The Committee must stress once again that the above provisions are not in conformity with Article 2 of Convention No. 87 for the very same reasons enumerated in the preceding paragraphs pertaining to the registration of BIGU. The Committee therefore requests the Government to take appropriate steps to ensure that the newly formed union at Saladin Garments Ltd. is granted registration so as to enable it to exercise legitimate trade union activities.

Torture of Mr. Chand Mia

116. As regards the alleged torture of a worker, Mr. Chand Mia, by Messrs. Nannu, Jainal and Monir on 8 and 9 April 1996, the Committee regrets that the Government merely confines itself to stating that this allegation could not be proved at the time of the inquiry and that even the President of the union did not see Mr. Chand Mia being physically tortured but simply learnt of it later on. The Committee further deplores the fact that the police had taken no action on a complaint lodged on 9 April 1996. The Committee believes that an independent judicial inquiry is especially warranted here since it has considered on previous occasions that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts [see Digest, op. cit., para. 53].

Harassment and intimidation of union President and
members; forced resignation of two women workers

117. As regards the alleged harassment and intimidation of the union President, Ms. Asma, and of other workers for attempting to establish an independent union, the Committee notes the Government's statement that during the course of its inquiry, the management did admit to "advising" Ms. Asma not to form a union with the assistance of outsiders. The Government maintains however, that Ms. Asma and other workers were issued show-cause notices (misconduct letters) later on not because of their involvement in the establishment of a trade union but for "various other reasons" as per the laws of the country.

118. Similarly, as regards the alleged forced resignation of union General Secretary, Ms. Shuli, and another women union member, the Committee notes that the Government merely repeats the management's view that as the two women workers had resigned voluntarily, there was no room for their reinstatement.

* * *

119. In a general manner, the Committee notes that the Government, while not denying the anti-union attitude of the management, does not shed further light on it during the course of its inquiry. The Committee considers that these allegations complete the picture of active anti-union discrimination by the management. It further considers that attempting to obtain lists of unionists for the purpose of having a basis for systematic anti-union activities, such as issuing death threats and misconduct letters to union leaders and members as well as engineering their forced resignations, is a severe violation of freedom of association principles. It therefore requests the Government to keep it informed of the outcome of the independent judicial inquiry into the above allegations.

The Committee's recommendations

120. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

The Committee requests the Government to ensure that the appropriate legislative amendments, in the light of its conclusions, are made to the Industrial Relations Ordinance, 1969 (IRO), so that workers can establish and join organizations of their own choosing without any restrictions.
The Committee urges the Government to take appropriate steps to ensure that the Bangladesh Independent Garment Workers' Union (BIGU) is granted registration as a trade union organization. It further requests the Government to keep it informed of any progress made in this regard.
The Committee requests the Government to institute an independent judicial inquiry in order to resolve contradictions in the evidence provided so far in this case by BIGU and Palmal management. It requests the Government to keep it informed of the outcome of this inquiry in respect of the following allegations: (i) blacklisting of workers and trade unionists; (ii) intimidation, beating and resignation of Mr. M. Rahman and Mr. N. Ahmed; (iii) termination of employment of eight BIGU members; (iv) discrediting of 11 BIGU members; (v) forced resignation of two women workers; (vi) attack on BIGU trade union premises and the assault on BIGU trade unionists on 21 November 1995. The Committee further requests the Government to keep it informed of the outcome of the cases pending in the labour courts which were filed by six of the eight BIGU members whose employment was terminated and to take measures to reinstate the workers concerned, if their dismissals are proven discriminatory.
The Committee reiterates its request to the Government to take the necessary steps to clarify Ms. Kalpana's employment situation, to ensure that she can continue to work in her post at Palmal, if she so wishes, and to make sure that she is not discriminated against because of her trade union activities.
The Committee requests the Government to keep it informed of the outcome of several cases, namely IRO Cases Nos. 48/95, 50/95, 51/95, 54/95, 55/95 and 74/95, which have been filed by various BIGU activists and members and which are still pending in labour courts.
The Committee requests the Government to take appropriate steps to ensure that the newly formed union at Saladin Garments Ltd. is granted registration so as to enable it to exercise legitimate trade union activities. It requests the Government to keep it informed of any progress made in this regard.
The Committee requests the Government to open a genuinely independent judicial inquiry into the allegations of violations of trade union rights of Saladin Garments Ltd. It requests the Government to keep it informed of the results of this inquiry, particularly in respect of the following allegations: (i) the torture of Mr. Chand Mia, a worker at Saladin Garments Ltd. by Messrs. Nannu, Jainal and Monir on 8 and 9 April 1996; (ii) severe harassment and intimidation of union President, Ms. Asma, and other union members, including through the issuing of death threats and misconduct letters; (iii) the forced resignation of union General Secretary, Ms. Shuli, and another woman union member.
The Committee draws the attention of the Committee of Experts to the legislative aspects of this case.

Case No. 1885

Report in which the Committee requests
to be kept informed of developments

Complaint against the Government of Belarus
presented by
the International Confederation of Free Trade Unions (ICFTU)

Allegations: Expulsion of unionists, violations of freedom
of assembly and freedom of association

121. In communications dated 15, 21 and 29 May 1996, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint of violations of freedom of association against the Government of Belarus.

122. In the absence of any reply from the Government, the Committee had to postpone its examination of this case involving allegations of a particularly serious nature on two occasions. At its meeting in November 1996 [see 305th Report, para. 9], the Committee made an urgent appeal to the Government stating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting, even if information and observations requested from the Government had not been received in due time. The Government has not furnished any observations to date.

123. Belarus has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

124. In its communication of 15 May 1996, the ICFTU alleges that the Government of Belarus has again taken action to prevent the independent trade unions of the country from enjoying normal, international trade union contacts.

125. According to the ICFTU, a NSZZ Solidarnosc delegation led by Marian Krzaklewski, President, accompanied by Andrzej Adamczyk, International Secretary, and Eugeniusz Polmanski as well as their driver travelled to Minsk on 13 May for a fraternal visit to the Free Trade Union of Belarus (SPB).

126. A number of meetings were organized by the SPB with workers in various enterprises. The delegation had received a permit to enter the Minsk Factory of Production Lines which they were to have visited on 14 May in the morning. This was subsequently withdrawn without any explanation. The delegation therefore met the workers in a school stadium outside the factory premises during their break. Thereafter, the delegation went to the union headquarters and had lunch in a nearby restaurant. Upon leaving the restaurant, they were stopped by eight officers of the Presidential Police and were taken to the police station of the Partisan district. The Polish Ambassador in Minsk intervened immediately and was allowed to meet the delegation. They were declared persona non grata and ordered to leave the country forthwith. The ICFTU indicated its understanding that there was a high risk of repressive measures being strengthened against the SPB.

127. In its communication of 21 May 1996, the ICFTU adds that on 15 May, immediately after the deportation of the NSZZ Solidarnosc delegation, the police visited the headquarters of the SPB and served a court summons on Gennady Bykov, President, and P. Moyseyevich, Vice-President of the SPB and president of the Metal Workers' Union, on the grounds of their participation in an illegal gathering. The illegal gathering in question was the meeting held in a school stadium when the permit to visit the Minsk Factory of Production Lines was refused.

128. The Deputy Minister of Industry wrote to the union on 14 May, referring to Presidential Decree No. 336 imposing a temporary ban on the activity of the SPB. In view of this Decree he advised that any meeting with the workers should take place outside their work premises. As the union had received a written permit for the visit to the factory from the director, they arrived at the factory in line with the agreed schedule. Upon their arrival, they were met by armed police and security officers with video cameras. The director was visibly upset and withdrew the permit. Bykov and Moyseyevich in effect remained in the factory discussing with the director and officers while the meeting in the school stadium was taking place. They therefore did not participate in the allegedly illegal gathering. Nevertheless, if they are to be tried and condemned, Bykov, who has already served a ten-day sentence, would be eligible for a minimum six-month imprisonment.

129. The ICFTU further alleges that the SPB was informed by the Deputy Minister of Justice that the ministry had received instructions from the Presidency to implement Decree No. 336. In terms of the Decree, the ministry would need to close all SPB offices. Furthermore, the two unions associated with the SPB, namely the Belarus Independent Union (formerly NPG) and the Free Trade Union of Transport Workers, have been served with summons for the use of illegal insignia on the occasion of their first of May demonstrations. Both unions have union flags with their acronyms printed against the background of the former flag of free Belarus.

130. In conclusion, the ICFTU emphasizes the continuing use by the Government of Presidential Decree No. 336, in clear contradiction with recommendations on this subject previously made by the Committee on Freedom of Association.

B. The Committee's conclusions

131. The Committee regrets that despite the time elapsed since the presentation of the complaint and given the seriousness of the matters alleged, the Government has not responded to any of the allegations made by the complainant organization, though it has been invited to make comments and observations on this case on several occasions, including by means of an urgent appeal.

132. Under these circumstances, and in accordance with the applicable rule of procedure [see the 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee feels obliged to submit a report on the substance of the case, even in the absence of the information which it had hoped to receive from the Government.

133. The Committee first of all reminds the Government that the purpose of the procedures established by the International Labour Organization for examining allegations of violations of freedom of association is to ensure that this freedom is respected in law and fact. While these procedures protect governments against unreasonable accusations, they must recognize for their part the importance of formulating detailed replies to the allegations made against them for objective examination. [See First Report of the Committee, para. 31.]

134. The Committee notes that the allegations in this case refer to the expulsion of non-national unionists, the serving of a court summons on trade union leaders for participation in a union gathering, and the continued threat of implementation of a ban on the activity of the Free Trade Union of Belarus (SPB) and its dissolution. In particular, the Committee notes with concern that many of these allegations concern violations of the principles of freedom of association which had recently been drawn to the Government's attention in the Committee's examination of another complaint submitted against the Government of Belarus [Case No. 1849, 302nd Report, paras. 161-222].

135. The Committee first notes that members of a delegation of the NSZZ Solidarnosc, after having met with workers from the Minsk Factory of Production Lines and having visited the SPB headquarters, were stopped by eight officers of the Presidential Police and taken to the police station where the Polish Ambassador in Minsk was obliged to intervene. The NSZZ Solidarnosc officers were declared persona non grata and ordered to leave the country. The Committee further notes that, immediately after the deportation of the NSZZ Solidarnosc delegation, a summons was issued against Gennady Bykov and P. Moyseyevich, the President and Vice-President respectively of SPB, for having participated in an "illegal gathering" (i.e., the SPB meeting with the NSZZ Solidarnosc delegation held in a school stadium when the permit to visit the Minsk Factory of Production Lines, originally granted, was subsequently revoked without explanation).

136. The Committee must first emphasize the importance of the principle, affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties, that the respect for civil liberties, such as the freedom of assembly, is essential for the normal exercise of trade union rights. On the basis of the information available, the Committee cannot but conclude that the serving of a court summons on Bykov and Moyseyevich for participation in a meeting of the SPB with the NSZZ Solidarnosc delegation is in violation of the union's right to free assembly and of freedom of association. Furthermore, given that the allegations indicate that Mr. Bykov, if tried, would be eligible for a minimum six-month prison term, the Committee wishes to emphasize, as it did in another case concerning Belarus [see 302nd Report, para. 213], that the imprisonment of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association. The Committee therefore calls on the Government to immediately withdraw any charges made against Bykov and Moyseyevich for their participation in the SPB meeting of 14 May 1996 and to refrain from any further measures interfering with the right of free assembly of trade unions. It requests the Government to keep it informed concerning the withdrawal of charges against Mr. Bykov and Mr. Moyseyevich.

137. The Committee also regrets that the members of the NSZZ Solidarnosc delegation were declared persona non grata and deported following, and apparently as a result of, their participation in the SPB meeting. It finds this fact all the more disturbing given that the delegation had already initially received a permit to enter the Minsk Factory and to visit the workers there which was subsequently revoked without explanation. In this respect, the Committee would draw the Government's attention to the principle that the formalities to which trade unionists and trade union leaders are subject in seeking entry to the territory of a State, or in attending to trade union business there, should be based on objective criteria and be free of anti-union discrimination. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 639.] It requests the Government to ensure in the future that this principle is fully respected in practice.

138. The Committee also notes from the allegations that the SPB has been informed by the Deputy Ministry of Justice that the ministry had received instructions from the Presidency to implement Decree No. 336. In its examination of Case No. 1849, the Committee noted with satisfaction that the Constitutional Court had declared certain articles of Presidential Decree No. 336 to be unconstitutional, in particular those concerning the suspension and termination of the activities of the Free Trade Union of Belarus, as well as the pursuit by the Procurator's office of its dissolution. [See 302nd Report, paras. 207, 209 and 210.] The Committee, however, expressed serious concern that it did not have any information on the follow-up given to the Court's decision and urgently requested the Government to ensure its full implementation. [See 302nd Report, para. 222(d).]

139. In these circumstances, the Committee cannot but express its profound regret that the Government has not taken any measures to implement its above recommendation concerning Decree No. 336 and, to the contrary, would appear to be threatening new steps to implement the Decree despite the declaration by the Constitutional Court of its unconstitutionality and the conclusions of the Committee that its provisions were in violation of the principles of freedom of association. The Committee therefore urges the Government to take immediate steps to revoke the provisions of Presidential Decree No. 336 which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard.

140. Finally, as concerns the summons served upon two unions associated with the SPB (the Belarus Independent Union and the Free Trade Union of Transport Workers) for the use of illegal insignia on the occasion of their demonstrations on the first of May, the Committee must recall that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. [See Digest, op. cit., para. 152.] The Committee is of the opinion that the choice of union insignia falls within the scope of freedom of expression, the respect of which is essential for the normal exercise of trade union rights, and therefore should, as a general principle, be left solely to the internal affairs of the trade union in question. The Committee trusts that, if charges are maintained against the unions in question concerning their use of this insignia, that they will be reviewed by an independent judicial body which will ensure that the freedom of expression of trade unionists is also respected when considering other interests which might eventually be invoked. The Government is requested to keep the Committee informed of any further developments concerning the summons served upon the Belarus Independent Union and the Free Trade Union of Transport Workers for the use of what the Government considers as illegal insignia.

The Committee's recommendations

141. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

The Committee regrets that the Government has not responded to the serious allegations presented by the complainant organization, despite the fact that it was invited to do so on several occasions.
Recalling the importance it attaches to the principle that the respect for civil liberties, such as freedom of assembly, is essential for the normal exercise of trade union rights, the Committee requests the Government to immediately withdraw any charges made against the President and Vice-President of the SPB, Mr. Bykov and Mr. Moyseyevich, for their participation in the SPB meeting of 14 May 1996 and to keep it informed of the progress made in this regard.
The Committee requests the Government to take all steps in the future to ensure fully the respect for the principle that the formalities to which trade unionists and trade union leaders are subject in seeking entry to the territory of a State, or in attending to trade union business there, should be based on objective criteria and be free of anti-union discrimination.
Regretting that the Government has apparently not taken any steps to implement its previous recommendation in Case No. 1849 concerning Presidential Decree No. 336, the Committee urges the Government to take immediate steps to revoke the provisions of this Decree which interfere with the free exercise of trade union rights, namely articles 1, 2 and 3, and to keep it informed of the progress made in this regard.
Recalling that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities, including as concerns the choice of union insignia, the Committee trusts that, if charges are maintained against the Belarus Independent Union and the Free Trade Union of Transport Workers for the use of what the Government considers as illegal insignia on the occasion of their demonstrations on the first of May, they will be reviewed by an independent judicial body which will ensure that the freedom of expression of trade unionists is respected when considering other interests which might eventually be invoked. The Government is requested to keep the Committee informed of any further developments in this regard.

Case No. 1831

Definitive report

Complaints against the Government of Bolivia
presented by
-- the World Confederation of Labour (WCL) and
-- the International Confederation of Free Trade Unions (ICFTU)

Allegations: Consequences of the state of
emergency on trade union rights

142. The Committee examined this case at its November 1995 meeting [see 300th Report, paras. 371 to 398, approved by the Governing Body at its 264th Session (November 1995)], in which it came to interim conclusions.

306th Report of the Committee on Freedom of Association

Contents(1)

INTRODUCTION

New cases

Observations requested from governments

Observations requested from complainants

Partial information received from governments

Observations received from governments

Urgent appeals

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

306th Report of the Committee on
Freedom of Association

Contents⁽¹⁾

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