369. The Danish Nurses' Organization (DNO) submitted a complaint of violations of trade union rights against the Government of Denmark in communications dated 10 May and 17 June 1996 and 3 February 1997.

370. The Government sent its observations on this case in a communication dated 6 September 1996.

371. Denmark 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).

372. In its communication of 10 May 1996, the Danish Nurses' Organization (DNO) indicates that the complaint concerns the Government's proposal on 23 May 1995 of an "Act on extension and renewal of employment contracts and agreements for nurses, radiographers, paediatric district nurses, district nurses, hospital laboratory assistants, etc." passed by the Danish Parliament on 24 May 1995 (Act No. 330/1995) (a copy of the Act is attached as Appendix I). According to the complainant, the Act which was proposed and adopted without any previous consultation with the DNO, provided that all collective agreements between the relevant public employers (i.e. the Association of County Councils in Denmark, the National Association of Local Authorities, the Municipality of Copenhagen, the Municipality of Frederiksberg, the Copenhagen Hospital Corporation, and the Ministry of Finance) on the one hand and the DNO on the other should be renewed or extended until 31 March 1997 on the same general terms and conditions that had already been agreed upon between the parties to collective agreements in other fields of the public sector in Denmark.

373. In addition, the Act provided for creating a committee consisting of representatives of the parties to the nursing agreements in order to analyse a number of questions regarding wages and working conditions for nurses upon which the parties had been unable to reach agreement in their previous negotiations. The Committee was to conclude its work before 1 October 1995 and could only make proposals for further agreements within a very limited economic framework. After this, the parties to the agreements were given a further 30 days' period to negotiate amendments to the already renewed or extended agreements based on the proposals of the Committee. Any issues still outstanding after this final round of negotiations would then be submitted to compulsory arbitration by an umpire, who had also served as the impartial chairperson of the Committee. The award of the umpire was given on 10 November 1995.

374. The Act was proposed and adopted in order to stop an ongoing legal strike by the DNO in a limited number of specifically designated wards of certain public hospitals as well as in a limited number of primary health-care institutions. Agreements to maintain emergency and vital services at all times had been negotiated with the employers and were in force in all areas affected by the strike.

375. Public hospitals in Denmark employ approximately 25,000 nurses in positions covered by collective agreements. Of these, only 2,175 were covered by the strike declared by DNO which became effective on 1 May 1995. In response, the Copenhagen Hospital Corporation locked out 570 nurses, and the Association of County Councils notified a lockout of approximately 4,500 nurses but later withdrew its notice in respect of approximately 1,000 of these nurses. Thus, at the time of the intervention, the industrial actions in the hospitals comprised 2,175 striking nurses and approximately 4,000 locked-out nurses.

376. Approximately 11,000 nurses were employed under collective agreements in the primary health care sector. The strike actually affected 1,300 of these nurses. However, the National Association of Local Authorities, the Municipality of Copenhagen and the Municipality of Frederiksberg gave notice of lockout against an additional 6,500 nurses to become effective as per 1 June 1995. However, the Act put an end to all industrial action as from 27 May 1995.

377. First and foremost, the DNO contends that Act No. 330/1995 is an infringement of the nurses' right to free collective bargaining as provided under Convention No. 98. The Act has imposed upon the nurses a renewal or extension of their agreements for a two-year period on general terms and conditions which, although accepted by other labour unions, were known by the Government to have been clearly and repeatedly rejected by the DNO. The DNO considers that the regime imposed in the Act for Committee analysis and proposals regarding the specific issues relevant for the nursing profession and the subsequent negotiations and compulsory arbitration of these issues bears little resemblance to voluntary collective bargaining.

378. Secondly, the DNO holds that the adoption of the Act constituted a violation of the nurses right to strike. The DNO does recognize that limitations may be imposed on that right in certain essential undertakings or services such as the health-care sector. At the time when the strike was terminated through legislative intervention, however, it had lasted less than a month and had in no way created a situation which could endanger the life, personal safety or health of the whole or part of the population. The legislative intervention was caused not but rather by the prospect of the probable disturbances which might be created by the much broader lockout notified by the National Association of Local Authorities for 1 June 1995 in the primary health-care sector. Bearing in mind the close link between the public employers and the Government, the DNO questions whether this type of industrial action from public employers can reasonably justify a government intervention in the right of workers to carry out a lawfully established strike.

379. In its communication of 17 June 1996, the DNO indicates that it has 66,600 members and covers more than 95 per cent of all active nurses in the country. The complainant explains that as from 1969 the DNO's right to bargain collectively on behalf of its members was backed by the right to take industrial action in support of its claims.

380. The DNO took advantage of this new legal situation, and negotiated collective agreements with the public employers at the state, county and municipal level. The basic wage level of the different categories of public employees had, however, been de facto fixed by a government-appointed commission and could not be significantly altered. For registered nurses this level corresponded to that of a publicly employed skilled worker.

381. In addition to these agreements on wages and working conditions, the DNO also concluded General Agreements ("hovedaftaler") with the employers in accordance with common practice in the Danish labour market. Such General Agreements regulate, among other things, the right to strike or take other industrial action.

382. The General Agreement between the Association of County Councils in Denmark, the Copenhagen Hospital Authority and the (then) Ministry of Government Wages and Pensions on the one side and the Danish Nurses' Organization and the Municipal Nurses' Organization of Copenhagen on the other side regarding salaried nurses and hourly paid nurses of 17 September 1971 contains the following provisions in this respect:

Section 5. The parties recognize each other's rights to give notice of and employment work stoppages according to the rules below.

...

Clause 5. The work stoppage cannot include members which the parties by agreement decide to except from the right to give notice of and implement work stoppages.

Clause 6. A strike, lockout, blockage or boycott is considered a work stoppage.

383. Section 5, clause 5, was further limited by the following protocol: "The parties are in agreement that if the case should arise, an agreement must be reached which will as a minimum safeguard the necessary staffing in all areas affected by the work stoppage."

384. The DNO describes previous instances where strike and lockout were used, but where the parties managed to reach a settlement without industrial action.

385. The DNO's claims for the 1995 negotiations were related to the growing dissatisfaction among its members in respect of their wages and working conditions. This paramount claim of the DNO had been made abundantly clear to the public employers for a very long time, both through official channels and in an intensive public debate inspired by a massive publicity campaign initiated by the DNO in the fall of 1994.

386. In February and March 1995 the DNO gave notice at the county, local and city levels of work stoppages as of 1 April and 1 May 1995 covering a total of 3,450 nurses and 25 X-ray operators.

387. Shortly after the DNO had given its notices, negotiations were initiated with the respective employers and agreements were concluded to ensure the necessary staff to maintain emergency and vital services in all areas to be affected by the strikes.

388. In March 1995, the association of county, local and national levels gave notice of a lockout as per 1 May 1995 affecting 4,500 nurses in a total of 285 wards at 60 different hospitals. The lockout affected chiefly surgical bed wards, anaesthetic wards and out-patients' clinics.

389. The subsequent negotiations to maintain emergency staffing revealed that the actual everyday staff on a number of these wards and clinics did not exceed what must be considered a safe minimum standard. Thus the Association of County Councils in Denmark already at this early stage was forced to withdraw their notice of lockout in respect of a number of understaffed wards.

390. On 27 April 1995 the National Association of Local Authorities gave notice of a massive lockout by 1 June 1995, affecting all ordinary nurses in health-care functions in the 246 municipalities not covered by the strike notice of the DNO.

391. Prior to this lockout notice, the national Association of Local Authorities had decided to apply the principle that no municipality could be excepted from the lockout. This made negotiations for emergency agreements difficult. In spite of this policy on the part of the employers, a total of 18 joint operation schemes and home-care services, 68 nursing homes and two health visitor plans eventually were excepted in the 243 municipalities, for which agreements were reached before 24 May 1995.

392. The Municipality of Copenhagen gave notice of a lockout to become effective as per 1 June 1995 for home nurses on day or evening duty at all social centres not touched by the DNO strike notice. The lockout notice further covered all health visitors as well as all nurses working at nursing homes or special dwellings in Copenhagen. The Municipality of Frederiksberg also served a lockout notice for 1 June 1995 covering all home nurses and health visitors plus nurses working at three nursing homes.

393. Finally, the Copenhagen Hospital Corporation gave notice of a lockout as per 1 June 1995 for all nurses employed in wards that were connected with wards affected by the strike.

394. After the conflict had been stayed by the Public Conciliator for a total of one month, the strikes and lockouts that had been noticed for 1 April 1995 and 1 May 1995 finally became effective on the latter of these dates.

395. According to the complainant, the emergency services in the wards hit by DNO's strike functioned without major problems in accordance with the general and local agreements. In contrast to this, the lockout notice from the Association of County Councils in Denmark were very soon proved to have been excessive, and already on the second day of the conflict talks of reduction were initiated. The result of these negotiations was that 59 of the locked-out wards/clinics and parts of another then wards/clinics employing 1,022 nurses were excepted from the lockout and restored to full service.

396. In the written general remarks of the Bill which was to become Act No. 330, it is merely stated that the conflict included some 7,000 nurses, that it had lasted for more than three weeks without any signs of the parties getting closer and that the Government feared that the health and safety of the population would be threatened by a continuation of the conflict. The remarks further made reference to growing waiting lists in the hospitals.

397. As the final reason making an immediate intervention necessary, the Government made reference to the planned escalation of the conflict by 1 June "when also home nurses in municipalities not yet struck by the conflict will be included in the conflict". The Government expressed fear that this may have serious consequences for many old and sick people in spite of possible emergency arrangements. No mention was made of the fact that this escalation was solely due to the lockouts declared by the public employers.

398. The complainant emphasizes that the anxieties expressed by the Government were in no way substantiated and that the legislative action, therefore, was of an entirely pre-emptive nature.

399. The Government made no attempt to get the parties to resume negotiations nor did the Government make any effort to persuade the employers to adopt a more responsible attitude.

400. In summary, it is the view of the DNO that the Act was unnecessary or at least premature, that the Government made no attempt to explore alternate solutions through consultations with the DNO or otherwise, and that the Government both directly and indirectly had a marked interest in solving the dispute in favour of the employers, which is clearly reflected in the contents of the Act.

401. The Act instituted a compulsory extension or renewal of the terms and conditions that had previously been agreed upon between the bargaining coalitions of the public employee organizations on the one side and the public employers and their negotiators on the other in the respective areas where nurses were employed even though the DNO had expressly rejected this result in February and March 1995.

402. In section 3, clause 5, the Act opened the possibility of further wages increases. However, these were limited to 1.12 per cent for nurses employed under agreements with the Ministry of Finance or the counties or the local authorities. In hospitals run by the Copenhagen Hospital Corporation the limit was 1.29 per cent. These additional percentages were exactly equal to the wage increases which the bargaining coalitions had left for the individual unions to mete out in detail to their members. The Act provided that any wage increase over and above this had to be financed by the nurses themselves through improvement and efficiency, rationalizations, etc.

403. The limits would similarly apply to the subsequent round of bargaining which was to take place during October 1995 and to the award of the umpire regarding unresolved issues.

404. Thus, in summary the Act in economic terms entailed that the DNO was legally barred from obtaining any wage increase over and above that which had been the outcome of the settlement accepted by groups which had not taken industrial action. This limit could not be exceeded even if the public employer were to agree.

405. Furthermore, the compulsory arbitration of all outstanding issues provided for in the Act had the effect that neither party could make any concessions, both sides preferring to let the umpire make the decisions. According to the complainant, the Act gave the public employers the right to buy anything they wanted, provided only that they would pay a price considered fair by the umpire.

406. The umpire handed down her award on 10 November 1995. In a brief introductory remark the Umpire emphasized that in making her decision she had put particular emphasis on the possibilities to bring about added flexibility and better utilization of resources, including the possibility to increase the number of hours that nurses must be present at the working place. The umpire expressly underlined that it was outside her competence to make any decision in respect of the general wage level of the nurses.

407. In conclusion, the complainant states that the Government has infringed its right to free collective bargaining by sponsoring and supporting the Bill which was adopted as Act No. 330/1995, thus violating Conventions Nos. 87 and 98.

408. Finally, the complainant argues that the adoption of the Act constituted a violation of the nurses' right to strike. The legal intervention came at a time when there were no compelling grounds to stop the industrial dispute and the grounds used for intervention were partly fictitious, partly the result of obvious manipulations on the part of the employers with whom the Government has strong ties at all levels.

409. In its communication of 3 February 1997, the complainant submits a certain number of observations with respect to the information provided in the Government's reply which further emphasize the argumentation maintained in its initial complaint.

410. In a communication dated 6 September 1996, the Government of Denmark admits that the Danish Parliament passed an Act on 24 May 1995 in order to stop a lawful strike which had been running for 23 days between the Danish Nurses' Organization on the one side, and the Association of Local Authorities, the Association of County Councils in Denmark, the Ministry of Finance, the Municipality of Copenhagen, the Municipality of Frederiksberg and the Copenhagen Hospital Corporation on the other side.

411. According to the Government, the situation was so serious that Parliament found that it would be harmful to the health of the population to let the dispute continue. There were no signs that the dispute was coming to an end and the parties' positions were very far from each other. Irrespective of the agreements concluded between the parties concerning emergency services, the waiting lists showed a marked increase during this period. Estimates from the Ministry of Health showed that the dispute had led to cancellation of more than 18,000 operations. A further increase in waiting lists would have a serious impact upon the health condition of the population. Furthermore, many patients were waiting for preliminary examinations which were not covered by the emergency services and a further delay in these would mean that serious diseases would remain untreated for an unacceptably long period.

412. On top of this, the dispute was to be extended on 1 June as the municipal employers had given notice of lockout of district nurses as from that date. Irrespective of a possible emergency service, the lockout would have had serious consequences for many sick and elderly people.

413. The Government states that while clearly the Parliament would have preferred the parties to solve the dispute themselves, the parties had conducted lengthy negotiations prior to the dispute which first broke down in February 1995 and were then continued within the framework of the Danish Conciliation Service. The Public Conciliator postponed the disputes, of which notice had been given twice, without results. During the dispute there were no signs of the parties approaching each other.

414. The Government further states that the complainant was received by the parliamentary committee concerned in connection with the preparation of the Act and was given the possibility to present its views.

415. As concerns the complainant's reference to the connection between the public employers and the Government, the Government states that, by its very nature, the hospital sector forms part of the public sector. The biggest groups of employees in the hospital sector, however, are employed in the municipal and county sectors which have no connection to the Government. As concerns the complainant's allegation that their right to strike was violated, the Government states that it may in a case such as the present one where the safety and health of the population is at risk intervene in a dispute provided that the staff is given proper protection as a compensation for the restrictions in the right to negotiate.

416. The Act of 24 May 1995 prolonged the existing agreements until 31 March 1997 which is the starting date for the next round of collective bargaining in connection with the renewal of collective agreements in the public sector. As a consequence thereof the industrial action which had been taken or of which notice had been given lapsed. In addition, a committee was set up composed of the parties and a chairperson appointed by them.

417. This committee had the task to analyse and discuss the wage conditions of the nurses, their functions, the distribution of tasks, the use of resources, etc., and also to give the parties the possibility -- without any intervention from the Parliament or others -- to negotiate and present proposals for the distribution of the wage bill pool which had been increased by an amount corresponding to the wage bill increase which had been negotiated in other parts of the public sector.

418. The Committee could further make proposals involving additional costs which could be financed by means of efficiency-promoting measures, new forms of work organization, etc. The Committee was to complete its work by 1 October 1995, at the latest.

419. On the basis of these proposals the parties to the collective agreement were to engage in negotiations on possible changes in pay and working conditions. These negotiations should be completed by 1 November 1995, at the latest. If the parties failed to agree on the proposals, the chairperson of the fact-finding committee should act as umpire and make an award which should be binding on both parties.

420. The Act had the consequence that the dispute stopped. Apart from the question of the wage bill the parties were free to conclude agreements following negotiations between the parties. Unfortunately, the parties were very far from each other and neither of them seemed prepared to make any concessions. The umpire therefore had to make an award, dated 10 November 1995.

421. In conclusion, the Government is of the opinion that the Parliament had no alternative to doing what it did considering the health conditions of the Danish population. The situation was serious, 18,000 postponed operations -- 6,000 per week -- and a big number of cancelled preliminary examinations was the maximum risk that the Parliament could accept. A further expansion of waiting lists could have very serious consequences. Emergency services had been set up, but did not compensate for the cancelled operations and preliminary examinations.

422. The Act was to the biggest possible extent based on the existing agreements. In addition, the parties were offered the possibility of analysing conditions for nurses in an impartial forum composed exclusively of the parties themselves and with a unanimously appointed chairperson as well as the possibility of conducting proper negotiations within the framework of the Act. The Act gave the parties the possibility to discuss and negotiate any matter they found relevant, but -- if they failed to agree -- the chairperson should make an award which would be binding on both parties. The Government thus finds that it has satisfied the requirements which apply in connection with intervention in strikes by groups in essential services.

423. The Committee notes that the allegations in this case concern the legislative interruption of lawfully undertaken industrial action in the hospital sector at the local, municipal and county levels and the legislative extension of collective agreements for the nurses and other hospital workers concerned.

424. The Committee notes that, since 1969, workers and employers in the hospital sector have had the option of taking industrial action in support of their claims, subject to certain restrictions set in a number of General Agreements reached with their respective employers. It notes that under one such provision it is agreed that, if a work stoppage should arise, an agreement must be reached which will as a minimum safeguard the necessary staffing in all areas affected. In early 1995, the DNO gave notice of work stoppage for a total of 3,500 nurses and subsequently entered into negotiations for the determination of the staff necessary to maintain emergency and vital services in all affected areas. The DNO then concluded a general agreement with a model contract to be used as a basis for specific agreements in each area or institution which in all instances was accepted by the employers and considered to be sufficient to uphold the necessary and vital services. A final total of 2,175 out of 25,000 nurses in public hospitals and 1,300 nurses out of 11,000 in primary health in Denmark were covered by the strike called by the DNO.

425. Shortly after the DNO gave notice of its work stoppages, the Association of County Councils gave notice to lock out 4,500 nurses. In this instance, however, it appears that negotiations for emergency staffing revealed that the actual everyday staff of a number of these wards and clinics did not exceed what must be considered a safe minimum standard and the Association was required to withdraw its notice with respect to a number of understaffed wards amounting to approximately 1,000 nurses. Subsequently, the National Association of Local Authorities, the Municipality of Copenhagen and the Municipality of Frederiksberg also served notice of lockout covering all nurses in health-care functions, working at nursing homes and health visitors in their territories which were not already affected by the strike. The Committee further notes that the lockout notice of the Association of County Councils proved to be excessive and by the second day of the conflict, talks of reduction were initiated and a number of nurses and wards were restored to full service. At the time of the Government intervention in the industrial action, approximately 4,000 nurses were locked out.

426. Despite the steps taken to reduce the striking and locked-out nurses so as to ensure minimum vital services, the Committee notes the Government's position that the situation was so serious that it would be harmful to the health of the population if the dispute were to continue. Furthermore, it notes the Government's concern that the extension of the lockout intended for 1 June would have had serious consequences for many sick and elderly people.

427. The Committee would recall that, in past cases, it has considered that the right to strike may be restricted or even prohibited in the case of essential services in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of whole or part of the population. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 526.] Under this criterion, the Committee has considered that the hospital sector is an essential service where the supervisory bodies accept that government measures may restrict or prohibit strike action. [See Digest, op. cit. para. 544.]

428. The Committee notes that the complainant argues in this case that the emergency services in the wards touched by the DNO strike continued to function without major problems and that the seriousness of the situation was escalated rather by the extensive lockout notice given by the different employers. However, the Committee is of the opinion that the essential nature of hospital services would permit the Government to end all industrial conflict if it considered, as is the case here, that the life, personal safety or health of the population were endangered. The Committee would draw the Government's attention to the general principle that employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery. [See Digest, op. cit., para. 551.]

429. The Committee also recalls that where the right to strike is restricted or prohibited in essential services such as hospitals, adequate protection should be given to the workers concerned to compensate them for this limitation on their freedom of action. [See Digest, op. cit., para. 546.] This could be done, for example, by providing adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented. [See Digest, op. cit., para. 547.] The Committee notes in the present case that Act No. 330 provides: (a) for contracts and agreements which terminated on 1 April 1995 to be extended to 31 March 1997; (b) for the appointment of two committees comprised of the concerned parties to analyse the activities, salary levels, etc., of nurses and medical laboratory technicians respectively; (c) for negotiations to be entered into between the respective parties on possible amendments to the terms and conditions of employment which, if not agreed to, will be determined by the respective chairpersons of the committees; and (d) a limitation on any proposals of salary increases to 1.12 and 1.29 per cent.

430. The Committee notes that the parties were unable to reach any agreement under the terms of the Act and the final decision was handed down by the chairperson on 10 November 1995. It is not for the Committee to rule on the contents of that award, but it is rather up to the Committee to verify whether this form of compensation for removal of access to industrial action complies with its principles.

431. The Committee notes that the procedure created by Act No. 330 is indeed quite similar to that established in a previous case before the Committee concerning the interruption of industrial action by junior doctors. [See Case No. 1421 (Denmark), 265th Report, paras. 62-103.] Under the criterion referred to above, the Committee considers, as it had in this previous case, that both the general procedure for the settlement of disputes concerning the extended agreements and the specific procedure (joint board/independent umpire) created by Act No. 330 are adequate, impartial and speedy and involve the parties. As such they do safeguard the interests of the workers who are obliged to maintain industrial peace under the legislation in question.

432. The Committee must, however, also examine the allegation that the adoption of Act No. 330 has resulted in government intervention in voluntary collective bargaining. The Committee must recall in this regard that a basic aspect of freedom of association is the right of workers' organizations to negotiate wages and conditions of employment freely with employers and their organizations and that any restriction on this right should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period; any restriction should be accompanied by adequate safeguards to protect living standards of the workers concerned. [See Case No. 1421, 265th Report, para. 99.]

433. In addition, the Committee would once again recall that Article 6 of Convention No. 98 permits the exclusion from this basic right of "public servants engaged in the administration of the State", a term which the ILO supervisory bodies have looked at in the light of the distinction to be drawn between civil servants employed in various capacities in government ministries or comparable bodies and other persons employed by the government, by public undertakings -- such as public hospitals in this case -- or by independent public organizations. [See Case No. 1421, 265th Report, para. 100.]

434. In this case, therefore, the Committee considers that the Danish Nurses' Organization legitimately had enjoyed the right to negotiate the terms and conditions of employment of nurses by means of collective agreements until Act No. 330 put an end to negotiations upon the absence of agreement as of 1 November 1995 until 31 March 1997, the life of the statutorily extended agreement.

435. Furthermore, the Committee notes that the joint committee created under the Act for the DNO and its respective employers to negotiate amendments to the extended agreement was statutorily restricted in its negotiation of wage increases to 1.12 and 1.29 per cent and that the Act similarly restricted any final arbitration by the chairperson in this respect. As the wage increase appears to have been the main claim leading up to the industrial action in the present case, the Committee considers that such a restriction on the scope of the union's bargaining power is likely not to be conducive to harmonious industrial relations.

436. The Committee would recall that, in Case No. 1421 concerning industrial action by junior doctors, it had been of the opinion that the government intervention went beyond the criteria set out in the above paragraphs concerning acceptable restrictions on the voluntary fixing of conditions of employment since the method used went beyond the extent necessary and a reasonable period by prolonging the terms of the agreements for two years, and in some cases four years. [See Case No. 1421, 265th Report, para. 102.] Since the agreements in this case were also statutorily extended for two years, the Committee must again conclude that the government intervention in question went beyond what can be considered an acceptable restriction. In this connection, while noting the Government's indication that negotiations and conciliation procedures undertaken prior to the industrial action had proven to be in vain, the Committee notes that no evidence was put forward to show that the Danish economy as a whole or the nurses' sector itself was faced with an emergency situation such as to justify intervention in voluntary collective bargaining. It requests the Government to refrain from taking such action in the future.

437. Finally, the Committee notes that, while the complainant organization has indicated that it was in no way consulted prior to the adoption of Act No. 330, the Government states that the complainant was received by the parliamentary committee concerned and given the possibility to present its views. Given these conflicting versions, the Committee can only recall the importance which should be attached to the principle of consultation and cooperation between public authorities and employers' and workers' organizations at the industrial and national levels, in accordance with the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). [See Case No. 1421, 265th Report, para. 92.]

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

1. The Committee considers that, in the circumstances of this case, the legislative intervention which put an end to the industrial action in the hospital sector cannot be considered to be an infringement of the ILO principles on freedom of association.
2. The Committee considers that the statutory renewal and extension of collective agreements covering nurses was not in conformity with the principle of free collective bargaining with a view to the regulation of terms and conditions of employment under Article 4 of Convention No. 98, ratified by Denmark. It requests the Government to refrain from taking such measures in the future.

S. 1. The contracts and agreements referred to in Appendix I, section A, and which terminate on 1 April 1995, subject to new contracts or agreements being entered into before the Act enters into force, shall be extended to 31 March 1997 with the additions and amendments quoted in Appendix 2, and under the conditions included in agreements or rulings under s.4.

S. 2. The contracts and agreements referred to in Appendix 1, section B, and which terminate on 1 April 1995, subject to new contracts or agreements being entered into before the Act enters into force, shall be renewed to 31 March 1997 with the additions and amendments quoted in Appendix 2 and under the conditions included in agreements or rulings under s.4.

S. 3, para. 1. A committee shall be appointed with the purpose of preparing an analysis of nursing within the health-care sector, including:

1. areas of activity, allocation of tasks and responsibilities. The analysis shall be compared with the education and qualifications of nurses;
2. salary levels of nurses, including salary progression and development in relation to other occupations with which it would be natural to compare;
3. the extent to which flexibility in the execution of duties including interaction with other personnel groups can be increased;
4. utilization of resources, including possibilities for increased hours of duty at both hospitals and in the local authority nursing sector; and
5. the extent to which extraordinary activities can be established with a view to reducing waiting lists.

Para. 2. A committee shall be appointed with the purpose of preparing an analysis of the work of medical laboratory technicians, including areas of activity, allocation of tasks and responsibilities and salaries.

Para. 3. The committee under para. 1 above shall comprise representatives from the Danish Nurses' Organization, the Association of County Councils in Denmark, the National Association of Local Authorities, the Municipality of Copenhagen, the Municipality of Frederiksberg, the Copenhagen Hospital Cooperation and the Ministry of Finance. The committee shall be chaired by a chairman, jointly appointed by the parties to the committee. Where agreement on a chairman cannot be reached, the appointment shall be made by the Public Conciliation Service.

Para. 4. The committee under para. 2 above shall comprise representatives from the Danish Association of Medical Laboratory Technologists, the Association of County Councils in Denmark, the Copenhagen Hospital Cooperation and the Ministry of Finance. The committee shall be chaired by a chairman, jointly appointed by the parties to the committee. Where agreement on a chairman cannot be reached, the appointment shall be made by the Public Conciliation Service.

Para. 5. The committee under para. 1 above may make proposals which imply additional expenditure with effect on or after 1 October 1995 within the following percentages of basic salaries, excluding supplements and allowances, as at 1 October 1994:

1. Within areas covered by central government and local authority organizations and the Danish Nurses' Organizations: 1.12 per cent.
2. Within areas covered by the Copenhagen Hospital Cooperation and the Danish Nurses' Organization: 1.29 per cent.

Para. 6. The committee under para. 2 may make proposals which imply additional expenditure with effect from or after 1 October 1995 within the following percentages of basic salaries, excluding supplements and allowances as at 1 October 1994:

1. Within areas covered by central government and local authority organizations and the Danish Association of Medical Laboratory Technologists: 1.18 per cent.
2. Within areas covered by the Copenhagen Hospital Cooperation and the Danish Association of Medical Laboratory Technologists: 1.29 per cent.

Para. 7. The committees may also make proposals which involve additional expenditure which is financed by improvements in efficiency, rationalization, reorganization of work routines, etc.

Para. 8. The committees shall conclude their work on or before 1 October 1995.

Para. 9. Expenses of the committees shall be met by central government funds.

S. 4. Based on proposals from the committees under s. 3 above, negotiations shall be entered into between the respective parties to the contracts of service on possible amendments to the terms and conditions of such contracts.

Para. 2. Points on which agreement is not reached between the relevant parties before 1 November 1995 shall, with respect to nurses, be decided by the chairman of the committee under s. 3.1 above and, with respect to hospital laboratory assistants, be decided by the chairman of the committee under s. 3.2 above.

Para. 3. Expenses incurred by the chairman under para. 2 above shall be met by the two parties to the contracts of service, each to pay one-half.

Para. 4. The agreements made under para. 1 above and the decisions made under para. 2 shall not be approved by the Danish Local Authorities' Pay Board or by the board mentioned in s. 14 of the Copenhagen Hospital Cooperation Act.

S. 5. The contracts and agreements referred to under s. 1 above shall be subject to an embargo on striking and locking out for the period in which the contracts and agreements are extended.

Para. 2. The contracts and agreements referred to under s. 2 above shall be subject to an embargo on striking and locking out with effect from the entering into force of the Act, and the stoppages of work which have commenced as a consequence of disagreements between the parties shall cease.

Para. 3. Annoyance caused by industrial action shall not occur.

S. 6. Matters of breach and interpretation of the contracts and agreements which are extended and renewed by this Act shall be decided by the usual rules which apply to the matter.

S. 7. The Bill may be ratified immediately after adoption.

S. 8. The Act shall enter into force from and including 27 May 1995. Extension of contracts and agreements under s. 1 shall enter into force from 1 April 1995. Renewal of contracts and agreements under s. 2 shall be effective from the entering into force of the Act.

S. 9. The act does not apply to the Faeroe Islands and Greenland.

439. In a communication of 14 November 1996, the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) submitted a complaint of infringements of trade union rights against the Government of Ethiopia. The Confederation of Ethiopian Trade Unions (CETU) submitted allegations concerning this case in a communication also dated 14 November 1996. CETU submitted further allegations in a communication dated 27 January 1997.

440. The Government supplied its observations on the case in communications dated 17 January and 6 February 1997.

441. Ethiopia 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).

442. In its communication of 14 November 1996, FIET alleges that on 4 November 1996, six members of the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF), backed by security and police personnel, forcefully occupied the offices of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP), an affiliate of FIET. FIET asserts that the attack is the culmination of a campaign by the Government against the FCTP. The attack follows the constant harassment by government officials and intervention by government departments in the affairs of this federation which has defended free, independent and democratic trade unionism in Ethiopia.

443. FIET contends that since 1994, the EPRDF and the respective government department have succeeded -- by manipulating first-level unions and putting pressure on individuals and unconstitutional congresses -- in turning seven of the nine federations affiliated to CETU into pro-government organizations. According to FIET, they are now trying to silence the only two independent federations left and the CETU President. It further fears for the physical integrity of the leaders of the FCTP and the other affiliate of FIET, the Industrial Federation of Banking and Insurance Trade Unions (IFBITU), and of the CETU President, Mr. Dawey Ibrahim.

444. In its communication of 14 November 1996, CETU also alleges that on 4 November 1996, six members of the EPRDF, fully backed by the security and police forces, forcefully occupied the offices of the FCTP. CETU stresses that the FCTP, an affiliate, struggles for the existence of free, independent and democratic trade unions in Ethiopia. As a result, it has been a target of propaganda which culminated in the illegal attack on its office which in turn was fully backed by the Government.

445. CETU indicates more specifically that the six EPRDF members first of all entered the office of Mr. Mulatu Gurmu, the Treasurer, who, at the time, was alone there. They then insisted that he hand over the keys of the FCTP offices. When he resisted, he was brutally beaten up by them. Subsequently, they took the office keys, money and personal documents from him. The FCTP offices are now under the control of persons recruited by the Government and are therefore government stooges.

446. CETU adds that a complaint has been registered with the police and the public prosecutor. However, it does not expect any immediate action from them since the takeover of the FCTP offices was fully supported by the Government and moreover, there is no respect for the rule of law. CETU therefore appeals to the ILO to put pressure on the Government to respect the trade union rights guaranteed by Conventions Nos. 87 and 98 which have been ratified by Ethiopia.

447. In its most recent communication of 27 January 1997, CETU alleges that legal proceedings between itself and the Ministry of Labour are under way in the Labour Division of the Federal High Court over the question of the cancellation of its registration. Regarding this very matter, CETU contends that the Executive and Audit Committees of the so-called "eight federations" adopted a declaration on 4 January 1997 in which it was decided to reorganize CETU anew and to establish a coordinating committee to administer its property and assets.

448. CETU points out, in respect of the decision to re-establish its organization, that according to article 123 of Labour Proclamation No. 42/93, a trade union whose registration is cancelled by the Ministry of Labour ceases to exist if it fails to appeal to the competent court within the time-frame set by this law or when the decision of the Ministry is confirmed upon appeal. Since CETU had appealed to the court in accordance with the procedures prescribed by the law and in view of the fact that the case is still pending before the court which has not yet rendered a final decision, the Confederation is still a legally viable entity. Therefore, acts which aim at re-establishing CETU anew are illegal and would pre-empt the position of the court, which, in essence, amounts to undermining the independence of the judiciary.

449. As regards the decision to establish a coordinating committee to administer its property and assets, CETU indicates that six of the "eight federations" had earlier on applied to the Ministry to set up a caretaker committee. Endorsing this, the Ministry then submitted its application for the setting up of this committee to the court where CETU's above-mentioned appeal was pending. With regard to this question, the court ruled on 4 August 1995 that the need to set up a caretaker committee did not arise for the simple reason that the Confederation did have legal existence and could administer its property. CETU asserts that since this decision has never been reversed, it still remains binding. Hence, the very recent declaration of the above-mentioned Executive and Audit Committees of the "eight federations" amounts to no less than a challenge to the decision of the High Court.

450. Apart from this, the above-mentioned Executive and Audit Committees have no legal or constitutional mandate to terminate CETU's legal status, or reorganize, replace or assume its functions. Their only mandate is to represent the workers of their respective industrial sectors and carry out their duties as per the constitutions of the respective federations. These federations' councils and congresses have no power, either by law or by their respective constitution, to decide over the existence of CETU or over the administration of its property.

451. CETU contends therefore that the declaration issued by the Executive and Audit Committees not only violates the resolutions of the General Congress of Ethiopian Workers concerning the manner of administration of properties that had been owned and held by the previous national centre (ETU) but also contravenes national labour laws and international labour standards. The attempt being made to take control of CETU's properties, by pure executive fiat, amounts to none other than a gross act of illegality of the highest order. CETU asserts that the Ministry of Labour should ensure respect for the rule of law. Moreover the Ministry should not give any permission to set up nor to recognize the above-mentioned caretaker committee before the court makes a final ruling on the dispute over the cancellation of CETU's registration.

452. In its communications dated 17 January and 6 February 1997, the Government, referring to the fears expressed by FIET with regard to the physical integrity of the leaders of the two federations, the FCTP and the IFBITU, as well as that of CETU President, Mr. Dawey Ibrahim, states categorically that it has made no attempt and does not have any intention of attacking any trade union leader nor of interfering in internal union affairs. On the contrary, it has always stood up for trade union rights and the strict observance of freedom of association principles.

453. The Government asserts that the allegation concerning the forceful occupation of FCTP offices by six members of the EPRDF, backed by security and police personnel, is totally unfounded.

454. The Government indicates that what it knows about the FCTP is that, in a letter dated 22 October 1996, the executive office of this federation requested the Ministry of Labour and Social Affairs to provide identity cards for its newly elected leaders. According to the Government, the executive office of the FCTP indicated in this letter that in accordance with its constitution, its General Assembly which was held on 19 October 1996 elected new union leaders to replace those who had left the federation for their own reasons.

455. Therefore, and as per the request, the Ministry which is a government body responsible for the registration and certification of organizations and their leaders issued identity cards after examining the relevant documents. The Government stresses, however, that the issuance of identity cards to the newly elected union leaders is not exceptional. The other eight federations' leaders have also had identity cards issued to them by the Ministry in the same manner.

456. Furthermore, the Government emphasizes that neither the EPRDF nor the police and security personnel has occupied the offices of the FCTP. It points out that it discourages harassment and other undemocratic practices. Finally, it reaffirms its commitment to the free exercise of trade union rights in conformity with the Conventions on freedom of association.

457. The Committee notes that the allegations in this case concern the occupation by force of the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP), an affiliate of FIET, by six members of the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF), backed by the security and police forces. These allegations further refer to the physical assault on the Treasurer of the FCTP as well as the forced removal of elected trade union leaders of the same federation. These allegations finally refer to the attempts by eight pro-government federations, in collusion with the Government, to reorganize CETU anew and to administer its property and assets.

458. As regards the alleged entry into, and occupation of, FCTP premises by six EPRDF members, the Committee observes that the Government categorically denies that such an attack ever took place. Therefore, a fortiori, no trade unionist was physically assaulted. In view of the very large contradiction between the complainants' and Government's statements as to what actually did or did not occur on FCTP premises on 4 November 1996, the Committee would recall the principle that attacks against trade unionists and trade union premises and property create a climate of fear which is extremely prejudicial to the exercise of trade union activities and that the authorities, when informed of such matters, should carry out an immediate investigation to determine who is responsible and punish the guilty parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 179]. The Committee notes that this incident has been reported to the police. It therefore requests the Government to ensure that an independent investigation is carried out immediately into the alleged attack against FCTP premises and FCTP Treasurer on 4 November 1996 so as to identify and punish the guilty parties. It further requests the Government to keep it informed of the outcome of such an investigation.

459. As regards the alleged control of the FCTP offices by persons recruited by the Government, the Committee notes that the Government once again refutes this allegation. The Committee notes the Government's statement that it was the executive office of the FCTP which requested the Ministry of Labour and Social Affairs to issue identity cards for its newly elected leaders. Moreover, according to the Government, the issuance of such identity cards is quite a regular procedure that has been used vis-à-vis the leaders of the other eight federations. Once again, given the striking contradictions between the complainants' and Government's statements as to whether the new FCTP leaders were democratically elected or not, the Committee recalls the principle that the nomination by the authorities of members of executive committees of trade unions constitutes direct interference in the internal affairs of trade unions and is incompatible with Convention No. 87 [Digest, op. cit., para. 396]. In the light of the serious doubts which appear to surround the regularity of procedures followed leading to the nomination of the new FCTP leaders and in view of the principle that in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [Digest, op. cit., para. 405], the Committee would request the Government to institute an independent judicial inquiry into the above allegation and to keep it informed.

460. Finally, the Committee notes that the Government has not provided its observations on the allegations made by CETU in its communication of 27 January 1997 concerning attempts by eight pro-government federations to reorganize CETU and to administer its property and assets. It requests the Government to reply to these allegations without delay.

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

1. The Committee requests the Government to ensure that an independent investigation is carried out immediately into: (i) the alleged attack against, and subsequent occupation of, the premises of the Federation of Commerce, Technical and Printing Industry Trade Unions (FCTP) on 4 November 1996; and (ii) the alleged physical assault on Mr. Mulatu Gurmu, the FCTP Treasurer, on the same day, so as to identify and punish the guilty parties. It further requests the Government to keep it informed of the outcome of such an investigation.
2. The Committee requests the Government to institute an independent judicial inquiry into the allegation that irregular procedures were followed in nominating the new leaders of the FCTP. It asks the Government to keep it informed of the results of such an inquiry.
3. The Committee requests the Government to reply, without delay, to the allegations concerning attempts by eight pro-government federations to reorganize CETU and to administer its property and assets.

462. In a communication of 2 October 1995, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) presented a complaint of infringements of trade union rights against the Government of India, on behalf of its affiliate, the Hind Khet Mazdoor Panchayat. It submitted additional information in a communication of 14 November 1995.

463. The Government supplied its observations on the case in a communication dated 30 January 1997.

464. India has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

465. In its communication of 2 October 1995, the IUF indicates that its complaint relates to the assassination of Ms. Ahilya Devi, a trade unionist, on 23 August 1995.

466. More specifically, the IUF explains that Ms. Ahilya Devi was a member of its affiliate, the Hind Khet Mazdoor Panchayat, and worked especially on women's and landless labourers' rights. In late 1993, while working on a land redistribution programme, she was attacked by armed thugs but managed to survive, although with severe injuries. In response to this attempt on her life, the police initially refused to file charges against the prime suspect, Mr. Narsingh Singh, who was said to enjoy the patronage of local police and politicians. The IUF states that it protested even at that time to the federal Government as well as to the state Government of Bihar. Unfortunately, this was not enough as Ms. Ahilya Devi was assassinated two years later on 23 August 1995, which is evidence that both the federal Government and state Government of Bihar failed to protect fully and adequately the right of union activists to fulfil their tasks in a safe environment.

467. Furthermore, the IUF contends that prior to her death, local police refused prompt medical treatment to the seriously wounded Ms. Devi, leaving her to bleed for two and a half hours in the police station while ignoring her repeated requests to record her statement. She finally succumbed to her injuries in hospital. Following mass protests on 17 September 1995, two men were taken into custody and were reported to have "immediately confessed" to their guilt, thus putting a halt to a wider investigation. Finally the IUF points out that Ms. Devi's assassination was the third political murder of social and political rural activists to take place in the same district of Bihar state within a two-year period. In the IUF's view, the above information suggests, at a minimum, that local authorities have consistently failed to provide adequate safeguards for rural trade unionists working in a climate of pervasive violence.

468. In its communication dated 30 January 1997, the Government states that Ms. Ahilya Devi's murder has been thoroughly investigated by the state Government of Bihar. Detailed investigations were carried out by the most senior police officer at the district level in Kishangunj district. The facts brought out by the investigation are as follows.

469. Ms. Devi lived in the Galgalia area of Kishangunj district where she came in contact with Mr. Narsingh Singh, a notorious smuggler in the region. She started living in the house owned by Mr. Narsingh Singh. Approximately three years ago Ms. Devi started taking interest in political activities and probably at this point in time she became a member of the Hind Khet Mazdoor Panchayat. About two and a half years ago, Ms. Devi developed differences with Mr. Narsingh Singh and began opposing him.

470. In December 1993, certain persons injured Ms. Devi in connection with a land dispute. The incident was registered at the police station. In the first information report (FIR) lodged by Ms. Devi, she had named Satyanarayan Jha, Dev Narayan Rai, Dukhi Sahni, Shanti Devi, Kabri Devi and Narsingh Singh for the crime. The charges against these persons were investigated by the police and a charge sheet under appropriate sections of the Indian Penal Code, was filed in the court against five of the six accused persons. The charges against Mr. Narsingh Singh were investigated by the police but were not substantiated during the investigation. The case against the above-mentioned accused persons is pending trial in court.

471. The Government points out that after the above incident, until 23 August 1995, no incident was reported between Ms. Devi and Mr. Narsingh Singh. According to family members of Ms. Devi, on the morning of 23 August 1995 she had gone to a village situated in the adjoining state of West Bengal in connection with a land dispute. On the same evening, while she was returning home, some persons attacked her and escaped. After being injured in the attack, a third party transported her on his cart to the residence of the sub-inspector in charge of the police station. Ms. Devi did not respond to the efforts of the police officer to ascertain the facts of the case. He therefore sent for her family members staying close by. Even upon inquiries by the family members, Ms. Devi was unable to say anything that could throw light on the facts of the case. The police officer took her to Thakurganj Hospital located 15 km away in a private bus. Ms. Devi's husband accompanied her to the hospital where she passed away while she was being treated. She was unable to give any statement before her death.

472. Based on the statement of Ms. Devi's husband, a case was registered by the police. In this case, the husband of the deceased named six persons, namely Narsingh Singh, Shravan Giri, Bhrigunath Gupta, Ratan Ghosh and two unnamed persons. In the preliminary investigation, charges against Shravan Giri were established but no substantive evidence was found against the other persons. Mr. Giri was accordingly arrested by the Galgalia police authorities in Ludhiana in the State of Punjab, which is more than 1,000 km away. He confessed to the charges and disclosed that Mr. Tapan Kumar Chaki and Mr. Dinesh Mandal were present at the time of the murder of Ms. Devi. He indicated that smuggling- related enmity was the motive behind the murder. Mr. Tapan Kumar Chaki was arrested by the police and he too confessed to the crime. Formal charge sheets against Shravan Giri and Tapan Kumar Chaki have been filed in court. Mr. Dinesh Mandal, another accused, is still at large and proceedings for confiscation of his property have been initiated. Furthermore, the supervisory officers have ordered the arrest of Narsingh Singh, Bhrigunath Gupta and Ratan Ghosh, who were named in the complaint lodged by the Ms. Devi's husband.

473. According to the Government it can be seen from the facts reported above that Ms. Devi's unfortunate murder had nothing whatsoever to do with her political or trade union activities. The murder, as confessed to by one of the accused, was the outcome of Ms. Devi's involvement in smuggling activities on the Indo-Nepal border. The Government concludes that this is a simple case of murder arising out of the victim's own criminal activities which is being addressed to in accordance with the national laws.

474. The Committee observes that the allegation in the present case concerns the murder of Ms. Ahilya Devi, a trade unionist who used to organize rural labourers in the State of Bihar, on 23 August 1995 following a previous attempt on her life in 1993. According to the complainant, she was murdered because of her trade union and political activities. While acknowledging that Ms. Devi became a member three years ago of the Hind Khet Mazdoor Panchayat, an affiliate of the complainant, the Government maintains, on the basis of the investigation undertaken by it that Ms. Devi was murdered on account of her long-standing activities related to smuggling which had led to antagonism with other persons also involved in smuggling.

475. The Committee notes the Government's statement that formal charge sheets have been filed in court against Messrs. Shravan Giri and Tapan Kumar Chaki who were arrested by the police soon after Ms. Devi's death and who confessed to her murder. In order for it to have all the elements of this case at its disposal, the Committee requests the Government to keep it informed of the outcome of the proceedings under way against these two men and to provide copies in an ILO working language of the judgements to be handed down. The Committee further notes from the Government's reply that Mr. Dinesh Mandal, also implicated in Ms. Devi's murder, is still at large and proceedings for the confiscation of his property have been initiated. The Government indicates moreover that senior police officers have ordered the arrest of Messrs. Narsingh Singh, Bhrigunath Gupta and Ratan Ghosh, who were named in the complaint lodged by Ms. Devi's husband. The Committee requests the Government to keep it informed of developments regarding the arrest of these four men.

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

Noting that formal charge sheets have been filed in court against Messrs. Shravan Giri and Tapan Kumar Chaki who confessed to the murder of Ms. Ahilya Devi, a trade unionist who used to organize rural labourers in the State of Bihar, the Committee requests the Government to keep it informed of the outcome of the proceedings under way against these two men and to provide copies in an ILO working language of the judgements to be handed down. It further requests the Government to keep it informed of developments regarding the arrest of Messrs. Dinesh Mandal, Narsingh Singh, Bhrigunath Gupta and Ratan Ghosh, who have also been implicated in the murder of Ms. Ahilya Devi.

477. In a communication dated 23 September 1996, the International Confederation of Free Trade Unions (ICFTU) submitted a complaint against the Government of Pakistan for infringement of trade union rights. The Government sent its observations in communications dated 4 and 13 November 1996.

478. Pakistan 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).

479. In its communication dated 23 September 1996, the International Confederation of Free Trade Unions (ICFTU) alleges that on 6 June 1996, a group of policemen attacked workers belonging to the Pak China Fertilizer Limited Employees' Union, who were peacefully demonstrating against their employer's unilateral repudiation of agreements reached between the parties regarding reduction of the workforce. The factory was purchased by the Karachi-based Schon Group in 1992 following privatization. The complainant organization adds that, according to reports it has received, many of the workers were badly beaten up by the police who occupied the factory together with approximately 80 of the employer's hired "thugs"; they also occupied the adjacent workers' housing colony where they threatened not only the workers but also their families.

480. The complainant organization also alleges that some 45 unionists were arrested and taken to unknown locations (it is believed they were held in police cells in surrounding towns). The union's general secretary, Haji Hakar Khan, and the president, Lala Manzur, were handcuffed and taken in chains to be jailed in Dera Ismail Khan, a city some 500 km south of Haripur. It is believed that these arrests were carried out under section 3 of the Maintenance of Public Order Act, which allows persons to be held for up to three months without trial. Incarceration can be indefinitely extended for further periods of three months.

481. The Government reportedly stated that the demonstrations were political and claimed, wrongly, that the Supreme Court had ordered the trade unionists' arrest. A delegation of workers met with the Federal Minister of State for Labour, Manpower and Overseas Pakistanis on 9 June 1996 and requested its intervention so that the workers might be released on bail. The Government's Chief Minister was urged to release immediately all trade union officials.

482. The complainant organization also alleges that it was informed that the authorities suspended the registration of the Pak China Fertilizer Limited Employees' Union after application by the employer. This union had been registered for some ten years and its registration was suspended very quickly without giving the union an opportunity to defend itself. The grounds given for the suspension were that the enterprise in question supplied urea to the defence industry and that, under Pakistan's restrictive industrial relations law, the defence industry is one of the numerous sectors in which trade unions are banned.

483. In its communications dated 4 and 13 November 1996, the Government submits information provided by the Government of the North West Frontier Province (NWFP). It points out that Pak China Fertilizer Limited (Haripur) was in the throes of an acute financial crisis, due amongst other things to overstaffing. To overcome this problem, the management of the factory, in consultation with trade union officials, decided to retrench the surplus staff in the factory. In this respect, an agreement was signed between the parties on 11 December 1995. However, the trade union, instead of abiding by the agreement, which provided for the implementation of the retrenchment plan, reacted illegally and took over the control of the factory.

484. The case was already before the National Industrial Relations Commission which, after hearing both parties and ruling that the retrenchment of the workers was illegal, instructed the Deputy Commissioner Superintendent of Police of the NWFP Government to ensure the smooth running of the factory and to call a meeting of the parties to avoid any recurrence of past events. However, successive meetings with the union officials did not succeed in putting an end to the illegal occupation of the plant. As a result of this illegal occupation by the trade union, the District Administration had to act to implement the judgement of the National Industrial Relations Commission. Once the management and trade union had reached an agreement, 316 workers out of a total of 417 resumed their duties. At present, all trade union officials and workers have been released and industrial relations are normal.

485. As regards the allegation concerning the suspension of the trade union's registration, the Government states that the management of the factory filed a petition to the National Industrial Relations Commission on the grounds that the factory was supplying ammonia gas to the defence forces and that the factory's services were connected with the defence forces; consequently, according to the provisions contained in the Industrial Relations Ordinance, 1969, the workers of the factory could not belong to a trade union. On the application of the management, the Commission suspended the operations of the union in the factory and instructed the Registrar Trade Union to cancel its registration.

486. The Government stresses its commitment to fulfil its obligations with respect to ILO Conventions and gives assurance that it will continue to protect and safeguard all the legitimate rights of workers in Pakistan.

487. The Committee notes that in this complaint the complainant organization has alleged: (1) that the police and "thugs" hired by the Pak China Fertilizer Limited badly beat up workers in the factory who were peacefully demonstrating, threatened workers and their families in the workers' housing colony and arrested 45 trade unionists, including the president and general secretary of the factory union; and (2) the suspension of the registration of the factory union on the grounds that the enterprise was involved with the defence industry.

488. The Committee notes that the Government reports that the parties reached an agreement on the main grounds of the collective dispute (the plan to retrench staff) and that all the workers and trade unionists have been released. The Committee understands that charges have not been brought against these workers and unionists and requests the Government to confirm this. The Committee notes, however, that the complainant and the Government differ in their versions of the conditions under which the police intervened: according to the complainant, there was a peaceful demonstration, whereas, according to the Government, although it does not at any time refute the pacific nature of the trade union action, the plant was illegally occupied. In particular, the Government points out that although the National Industrial Relations Commission had ruled that the enterprise's retrenchment of staff was illegal, it had also requested the public authorities to guarantee the normal running of the factory -- which was being illegally occupied -- and to call a meeting of the parties who might, subsequently, reach an agreement to end the dispute.

489. Taking into account that the retrenchment of staff in the enterprise was declared illegal, as well as the fact that many restrictions on the exercise of the right to organize and strike in the legislation in Pakistan may explain why trade union organizations opt in certain cases to exercise the right to demonstrate or occupy the workplace to defend their claims, the Committee deeply regrets that many trade unionists were beaten up and arrested (including the president and general secretary of the Pak China Fertilizer Limited Employees' Union) for carrying out trade union activities, and that even their families were threatened. The Committee draws the Government's attention to the fact that the detention of trade unionists and trade union leaders for reasons connected with their activities to defend the interests of workers is contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 73], and that a climate of violence aimed at trade union leaders and their families does not encourage the free exercise of the trade union rights set out in Conventions Nos. 87 and 98, and all States have the duty to guarantee their respect [see op. cit., para. 61].

490. Concerning the suspension of the registration of the Pak China Fertilizer Limited Employees' Union, the Committee notes that according to the Government, the management of the factory filed a petition to the National Industrial Relations Commission, on the grounds that the factory was supplying ammonia gas to the defence forces and that the services provided by the factory were connected with the defence forces; consequently, according to the provisions contained in the Industrial Relations Ordinance, 1969, the workers of the factory could not form a trade union. The Commission thus suspended the operations of the union in the factory and instructed the Registrar Trade Union to cancel its registration.

491. Noting that the trade union's activities were suspended and its registration cancelled on the grounds that the factory provided services connected with the defence forces (by providing ammonia gas to the defence forces) and that, under the Industrial Relations Ordinance, 1969, the workers in question could not therefore organize (although they had been exercising their trade union rights through their trade union for years), the Committee reiterates the conclusions it already made in a previous case which dealt with the scope of the right to organize in Pakistan [see 295th Report, Case No. 1771, para. 499]:

... the Committee would first recall that Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing. While Article 9 of the Convention does authorize exceptions to the scope of its provisions for police and armed forces, the Committee would recall that the members of the armed forces who can be excluded should be defined in a restrictive manner. Furthermore, the Committee of Experts on the Application of Conventions and Recommendations has observed that since this Article of the Convention provides only for exceptions to the general principle, workers should be considered as civilians in case of doubt [see General Survey on freedom of association and collective bargaining, 1994, ILC, 81st Session, para. 55] ..., the Committee would draw the Government's attention to the need to ensure, in its legislation ... the right for all workers who are not members of the armed forces to organize and to carry out trade union activities.

492. The Committee concludes that the measures to suspend the activities of the Pak China Fertilizer Limited Employees' Union and to cancel its registration constitute a clear violation of freedom of association; moreover, as this occurred shortly after the factory and trade union had put an end to a collective dispute by means of an agreement, this gives serious grounds to believe that reprisals were being taken against the trade union.

493. In these circumstances, the Committee urges the Government to take immediately the necessary measures to revoke its decision to suspend the activities of the Pak China Fertilizer Limited Employees' Union, to register it once again and to guarantee that its trade union activities can be carried out normally.

494. Finally, the Committee requests the Government to keep it informed on the measures taken to follow up its recommendations.

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

1. The Committee deeply regrets that many trade unionists were beaten up and detained for a number of days (including the president and general secretary of the Pak China Fertilizer Limited Employees' Union) for carrying out trade union activities. The Committee requests the Government to confirm that no charges have been maintained against the trade unionists and workers who were detained and subsequently released. The Committee draws the Government's attention to the fact that the detention of trade unionists and trade union leaders for reasons connected with their activities to defend the interests of workers is contrary to the principles of freedom of association, and that a climate of violence aimed at trade union leaders and their families does not encourage the free exercise of the trade union rights set out in Conventions Nos. 87 and 98, and all States have the duty to guarantee their respect.
2. Being of the view that the suspension of the activities of the Pak China Fertilizer Limited Employees' Union and the cancellation of its registration constitute a clear violation of freedom of association, the Committee urges the Government to take immediately the necessary measures to revoke its decision to suspend the activities of this trade union, register it once again and to guarantee that its trade union activities can be carried out normally.
3. The Committee requests the Government to keep it informed on the measures taken to follow up its recommendations.

496. The Committee examined this case at its June 1996 meeting and presented an interim report to the Governing Body [see 304th Report of the Committee, paras. 417-473, approved by the Governing Body at its 266th Session (November 1996)].

497. The Government sent further observations in a communication dated 16 December 1996.

498. Peru 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).

499. At its meeting in June 1996, the Committee formulated the following recommendations concerning the allegations still pending [see 304th Report, para. 473]:

• as regards the allegations of mass dismissals of mostly trade union officers in the Iron and Steel Enterprise of Peru (SIDERPERU), the Committee had requested the Government to proceed with an inquiry to determine to what extent anti-union considerations played a role in these dismissals and, if this were indeed the case, to initiate appropriate procedures so that the prejudice suffered is compensated. It also requested the Government to inform it of the outcome of the appeals lodged by certain dismissed trade union leaders with the Supreme Court;
• as regards the allegation concerning the freezing of trade union funds of SIDERPERU, the Committee had requested the Government to keep it informed of the outcome of the situation in this regard and especially the legal proceedings under way;
• as regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Committee had requested the Government to take the necessary steps to lift this prohibition;
• as regards the allegations concerning the publication of a Bill considered by the complainants to be contrary to freedom of association, the Committee had requested the Government to keep it informed of any development concerning the preparation of the Bill respecting industrial relations;
• as regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Committee had requested the Government to provide more detailed information regarding the real cause of dismissal of Mr. Iván Arias Vildoso, as well as that of the other 120 workers of the Electrolima SA Enterprise mentioned by the complainants;
• as regards the CLAT's allegations that further to the promulgation of Act No. 26513 there were arbitrary mass dismissals at certain enterprises (Manufacturas del Sur SA and Agraria El Escorial), the Committee had requested the Government to proceed with an investigation in this regard and to take measures to compensate the prejudice suffered if it was proved that the dismissals were of an anti-union nature;
• the Committee had regretted to note that the Government had not replied to the CLAT's allegations that 15 trade union officers and 55 unionized workers had been dismissed by the National Railway Enterprise of Peru (ENAFER) and by the San Antonio de Vitarte Clinic pursuant to the Act in question, and had requested it to send its observations in this regard without delay.

500. In a communication dated 16 December 1996, the Government makes the following observations concerning the Committee's requests formulated in the above recommendations:

• as regards the allegations concerning the mass dismissals in the Iron and Steel Enterprise of Peru, the Government states that, on the one hand, the programme of voluntary termination with economic incentives applied by the enterprise covered all its employees, without any distinction. On the other hand, the appeals lodged by dismissed unionized former workers and trade union officers were still pending before the Supreme Court. In this respect, some of the appellants had withdrawn their appeals and received in full the dues that had been deposited with the courts. In addition, in view of the fact that this matter lies within the competence of the judiciary branch, no authority outside the hierarchical structure of the judiciary may take over cases pending before the jurisdictional body or interfere in the exercise of its functions, as stipulated in the Constitution. For the above reason, the executive power cannot carry out any inquiry as requested by the Committee, since the judiciary branch has proceeded with the inquiries in this case through the judicial procedures already referred to;
• as regards the allegation concerning the freezing of trade union funds of SIDERPERU, the Government states that the trade union officers themselves had requested the endorsement of the sums deposited with the court by the enterprise and withdrawn the amounts relating to trade union dues. Moreover, the non-contentious proceedings between the enterprise and the trade union now before the courts do not refer to the question of trade union funds;
• as regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Government states that the Committee's request to lift this prohibition will be brought before the Congress of the Republic so that it may be taken into account during discussions of the draft amendments of the Industrial Relations Act;
• as regards the allegations concerning the publication of a Bill considered by the complainants to be contrary to freedom of association, the Government insists that since this Bill has not been approved by Congress, there is no point in analysing the observations that have been made;
• as regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Government states that the inquiries made have shown that the Electrolima SA Enterprise had, for budgetary reasons, dismissed only 95 workers, under section 71 of Act No. 26513, after granting them their social benefits and the compensation for which provision is made in the above-mentioned Act. The Government points out that the enterprise opted for this measure because if it had applied for the collective dismissal for which provision is made in Act No. 26513, the dismissed workers would not have been able to receive the social benefits and compensation mentioned above. Of the 95 dismissed workers, 94 collected their compensation and social benefits without lodging any appeals to annul the dismissal. The only exception was Mr. Iván Arias Vildoso, a former trade union officer, who lodged an appeal to annul the dismissal with a labour tribunal in Lima because he considered that in his case his trade union immunity had not been taken into account. In this respect, the judge had declared the appeal well-founded and ordered his reinstatement, the payment of wages and the settlement of other work-related benefits. The enterprise appealed the decision before a higher court, and a definitive decision has not yet been handed down;
• as regards mass arbitrary dismissals in certain enterprises alleged by the CLAT, the Government points out that according to the information it has obtained, the Manufacturera del Sur SA Enterprise proceeded with the collective termination of 122 workers for economic and restructuring reasons, under the terms of Act No. 26513. Although the decision handed down by the Industry and Crafts Directorate of Arequipa ruled that 79 workers should be considered redundant and subject to termination, through the conciliatory efforts of the Ministry of Labour and Social Welfare the parties agreed by means of a collective agreement to reduce the number of staff declared redundant, and only accepted the voluntary termination of 16 workers, who were paid their social benefits as well as an incentive. As regards the Agraria El Escorial enterprise, the Government maintains that it only terminated the employment relationship of two workers, who were not trade union officers, and who were paid their social benefits;
• as regards the dismissals of 15 trade union officers and 55 unionized workers in the National Railway Enterprise of Peru (ENAFER) as a result of a special inspection, the Government points out that these were not dismissals but a staff reduction process under the terms of Act No. 26120 respecting the privatization process, since ENAFER comes within the scope of the Act. If the complainants' assertions are correct, they have the right to appeal to the courts, since there is legal machinery for the defence of workers' labour rights;
• as regards the dismissals at the San Antonio de Vitarte Clinic, the Government states that the collective termination procedure carried out by the enterprise did not include a single trade union officer. The only trade union officer dismissed, Ms. Victoria Castro Muños, as was stated in Case No. 1784, was reinstated in her job by court order.

501. As regards the allegations concerning mass dismissals in the Iron and Steel Enterprise of Peru, the Committee notes the Government's observations but requests it once again to take the necessary measures to ensure that in future the application of such "voluntary termination" programmes is not used to carry out anti-union dismissals. The Committee again requests the Government to keep it informed of the outcome of the appeals lodged by some dismissed trade union officers with the Supreme Court.

502. As regards the freezing of trade union funds of SIDERPERU, the Committee notes that according to the Government the trade union officers themselves had requested the endorsement of the sums deposited with the courts by the enterprise and had withdrawn the amounts equivalent to trade union dues. The Committee also notes that the non-contentious proceedings between the enterprise and the trade union before the courts do not refer to the issue of trade union funds.

503. As regards the denial of the right to belong to organizations of their own choosing to workers during their probationary period, the Committee notes with interest that the Government will inform the Congress of the Republic of the Committee's request to lift this prohibition so that it may be taken into account during discussions of the draft amendment of the Industrial Relations Act. As regards the developments in the preparation of the Bill respecting industrial relations which is considered by the complainants to be contrary to freedom of association, the Committee notes the Government's statement to the effect that it has not been approved by Congress. The Committee requests the Government to keep it informed of any development concerning the draft amendment of the Industrial Relations Act to which the Government referred, and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the matter.

504. As regards the allegations concerning the arbitrary dismissal of over 120 workers, including a trade union officer, the Committee notes that according to inquiries carried out by the Government, in accordance with section 71 of Act No. 26513, the Electrolima SA Enterprise had, for budgetary reasons, dismissed only 95 workers, 94 of whom had received their compensation and social benefits without appealing for the annulment of the dismissal. As regards Mr. Iván Arias Vildoso, a former trade union officer, the Committee notes that the judge declared his appeal well-founded and ordered his reinstatement, as well as the payment of wages due and the settlement of other work-related benefits, and that the enterprise had appealed the decision before a higher court. The Committee requests the Government to keep it informed of the definitive decision handed down by the higher court.

505. As regards the arbitrary mass dismissals at the Manufacturera del Sur SA Enterprise alleged by the CLAT, the Committee takes due note of the fact that, out of the 122 workers whom the enterprise had included in the collective termination of employment for economic and restructuring reasons, thanks to the conciliation services of the Ministry of Labour and Social Welfare, the parties had agreed by collective agreement to reduce the number of staff subject to voluntary dismissal to 16 workers, who were paid their social benefits as well as an incentive. As regards the dismissals in the enterprise Agraria El Escorial, the Committee notes that according to the Government, this enterprise had only terminated the employment relationship of two workers who were not trade union officers, and who were paid their social benefits.

506. As regards the dismissals of 15 trade union officers and 55 unionized workers of the National Railway Enterprise of Peru (ENAFER), the Committee notes that according to the Government's observations, since the enterprise is covered by the scope of Act No. 26120 respecting privatization, it is carrying out a staff reduction process. In this respect the Committee once again draws the Government's attention to the fact that "one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 724]. The Committee requests the Government to establish an independent inquiry regarding the dismissals of the trade union officials and members, and to keep it informed in this regard. As it has done in previous cases, the Committee once again requests the Government to ensure that, in the cases where it would be necessary to have recourse to new staff reduction programmes, negotiations are held between the enterprise concerned and the trade union organizations [see 291st Report, Cases Nos. 1648/1650, Peru, para. 472]. The Committee also requests the Government once again to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination.

507. As regards the dismissals at the San Antonio de Vitarte Clinic, the Committee notes the Government's observations to the effect that this collective termination carried out by the enterprise did not include a single trade union officer, and that the only trade union officer dismissed, Ms. Victoria Castro Muños, as had been stated in Case No. 1784, had been reinstated in her job by court order.

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

1. As regards the allegations of dismissals in the Iron and Steel Enterprise of Peru, the Committee again requests the Government to keep it informed of the outcome of the appeals lodged by certain dismissed trade union officers with the Supreme Court.
2. The Committee notes with interest that the Government will inform the Congress of the Republic of the Committee's request to lift the prohibition denying the right to belong to organizations of their own choosing to workers during their probationary period so that it may be taken into account during discussions of the draft amendment to the Industrial Relations Act, requests the Government to keep it informed of developments concerning this bill and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this matter.
3. As regards the dismissal of trade union officer Mr. Iván Arias Vildoso, the Committee requests the Government to keep it informed of the final decision handed down by the higher court.
4. As regards the dismissals of 15 trade union officers and 55 unionized workers at the National Railway Enterprise of Peru (ENAFER), the Committee, as it has done in similar cases, again requests the Government to ensure that, in the cases where it would be necessary to have recourse to new staff reduction programmes, negotiations are held between the enterprises concerned and the trade union organizations [see Cases Nos. 1648/1650, Peru, 291st Report, para. 472]. The Committee requests the Government to establish an independent inquiry into the dismissals of the trade union officials and members and to keep it informed in this regard. In addition, the Committee once again requests the Government to take the necessary measures to ensure that in future the application of such staff reduction programmes is not used to carry out acts of anti-union discrimination.

509. The Committee examined this case at its March 1996 meeting and submitted an interim report to the Governing Body [see 302nd Report, paras. 495-518, approved by the Governing Body at its 265th Session (March 1996)]. The Government sent new observations in a communication dated 28 January 1997.

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

511. In the previous examination of the case, the allegation remained pending concerning the "individual agreement" in the Luz del Sur SA enterprise (appended by the complainants), under which Luz del Sur SA enterprise granted, before the initiation of collective bargaining, an increase in remuneration and other benefits to non-unionized workers. The Committee requested the Government to communicate its observations in this respect as a matter of urgency [see 302nd Report, para. 518(d)].

512. According to the complainants and specifically the Unified Trade Union of Electricity Workers (SUTREL) [see 302nd Report, para. 501], before collective bargaining began, the Luz del Sur SA enterprise offered the workers an "individual agreement" that granted staff an increase in wages and other benefits so long as they were not union members, in the hope that workers would relinquish their membership of SUTREL. The following is an extract from this "individual agreement":

This document constitutes an individual agreement on an increase in remuneration and the granting of other benefits between, on the one hand, Mr. César Berghüsen G., Manager of Human Resources, representing Luz del Sur, and, on the other, the non-unionized employee who signs this agreement (subsequently referred to as "the worker"), the terms and conditions of which are as follows:

FIRST -- This agreement is entered into as part of the proposal on increased remuneration and other benefits offered by Luz del Sur to its non-unionized staff, in as much as the absolute majority of the enterprise's employees (excluding senior management and staff with special responsibilities) do not belong to any trade union organization and are therefore not covered by the collective negotiations for the period 1994-95 conducted by trade unions which by law do not represent them; this proposal is accepted by the worker in place of the benefits payable to the unionized members of the staff as a result of the collective bargaining conducted from October 1994 to September 1995.

SECOND -- In the light of the first clause, Luz del Sur agrees to grant the worker the following benefits:

1. An extra bonus. [...]
2. An increase in remuneration. [...]
3. An increase in other benefits. [...]
4. An economic certificate. [...]

Both parties declare that they are in agreement with the foregoing clauses in virtue of which they have signed this agreement in Lima on .. April 1995.

Luz del Sur
The worker

513. In its communication of 28 January 1997, the Government states that under section 9, paragraph 1 of the Industrial Relations Act (Legislative Decree No. 25593), in matters of collective bargaining, the trade union with the absolute majority of members amongst workers in its area assumes the representation of all these workers, even if they are not members of the trade union. Section 42 states that the collective labour convention is binding on the parties to it, on those persons on whose behalf it has been signed and to whom it is applicable, as well as on workers joining later the enterprises covered by the agreement -- with the exception of those in positions of management or responsibility. Similarly, section 43(a) states that the collective labour agreement amends the relevant aspects of the labour relationship and also points out that individual contracts are automatically brought in line with the agreement and cannot contain provisions prejudicial to the worker. From the above, it may be inferred that the collective agreements signed in accordance with Legislative Decree No. 25593 take precedence over those of an individual nature inasmuch as they comply with the following requirements: (a) the trade union has an absolute majority of members in the area it covers; and (b) the benefits granted are better than those contained in the individual agreements. In this respect, the judicial order is attempting to safeguard the interests of workers within a framework of equity and justice, in order to guarantee industrial peace which is the cornerstone of national development.

514. The Committee notes that in this case the complainant organizations object to the individual agreements offered by the Luz del Sur SA enterprise to non-unionized workers granting them an increase in wages and other benefits "in place of the benefits payable to the unionized members of the staff as a result of the collective bargaining conducted from October 1994 to September 1995".

515. The Committee notes the Government's statements and particularly that collective agreements under Legislative Decree No. 25593 (Industrial Relations Act) should prevail over those of an individual nature if they fulfil the following requirements: (a) that the trade union represents the majority of the workers included in its area of activity; and (b) that the benefits granted are higher than those previously agreed upon.

516. The Committee notes that the Government has not sent specific observations on the legality and scope of the individual agreements in the Luz del Sur SA enterprise to which the complainants object and restricts its comments to the provisions relating to this matter under Legislative Decree No. 25593 (Industrial Relations Act). The Committee deduces from the legal provisions mentioned by the Government that the complainant organization (SUTREL) did not represent the absolute majority of the workers, which would allow it to conclude individual agreements under the conditions mentioned in the previous paragraph.

517. The Committee considers that, when in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union.

518. In these circumstances, the Committee urges the Government to ensure that the individual agreements offered by the Luz del Sur SA enterprise to non-unionized workers do not give rise to any discrimination vis-à-vis the workers belonging to SUTREL or undermine the negotiating capacity of this trade union.

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

The Committee urges the Government to ensure that the individual agreements offered by the Luz del Sur SA enterprise to non-union workers do not give rise to any discrimination vis-à-vis the workers belonging to SUTREL or undermine the bargaining capacity of this trade union.

520. The complaints in this case were lodged by the Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUTAEIPSS) in communications dated 9 and 25 April, 28 October, 15 November, 11 December 1996 and 29 January 1997, and by the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) in a communication dated 16 August 1996. The Government sent its observations in a communication dated 28 January and 28 February 1997.

521. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

522. The SUTAEIPSS alleges that the Ministry of Labour and Social Advancement has refused to register the National Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Ministry of Labour bases its decision on the fact that, on the one hand, the SUNTAEIPSS and the SUTAEIPSS are one and the same trade union organization and, on the other, the SUTAEIPSS has been registered as a public employees' trade union by the Institute of Public Administration (INAP) and registering the SUNTAEIPSS would therefore be tantamount to granting double legal personality.

523. The SUTAEIPSS (the complainant organization) alleges that the Ministry of Labour is mistaken and that this organization recognized by INAP is a regional body whereas the SUNTAEIPSS, though it has the same members as the SUTAEIPSS (but at the national level), is a new trade union organization with more than one branch that was established in accordance with the Collective Labour Relations Act (Legislative Decree No. 25593). The complainant adds that the SUNTAEIPSS's desire to register with the Ministry of Labour stems from the fact that INAP, which used to be responsible for registering trade unions of public employees, has been dissolved and the employees concerned are now unprotected and have no means of defending their trade union rights. The complainant concludes that the proposal of the president of the Labour and Social Security Committee of the Congress of the Republic to bring all public servants under the same labour laws and regulations as the private sector is all the more reason for the SUNTAEIPSS to register with the Ministry of Labour.

524. The complainant further alleges that the Peruvian Social Security Institute (IPSS) has repeatedly refused to negotiate the workers' list of demands for 1994, 1995 and 1996 concerning wage increases, conditions of work and other labour issues, and this despite the SUTAEIPSS's willingness to compromise and reduce the demands contained in the three lists to just four points.

525. In a communication dated 16 August 1996 the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) alleges that the Peruvian Broadcasting Company has obliged 230 workers to follow a mass training programme for positions of trust; these workers are all union members and include all the union leaders. Under national legislation workers in positions of trust can neither be union members nor bargain collectively, and the company is trying in this way to get rid of the trade union.

526. Regarding the refusal of the Ministry of Labour and Social Advancement to register the SUNTAEIPSS, the Government states in a communication dated 28 January 1997 that the SUTAEIPSS is a trade union organization of public employees that represents all its members at the national level, and that it was registered with the now defunct Institute of Public Administration (INAP). As the complainant recognizes, the SUNTAEIPSS's membership is the same as the SUTAEIPSS's; moreover, both the organizations' representatives are the same, which means that they are one and the same organization. Proof of this, according to the Government, is the fact that the complaint lodged with the ILO was submitted by the SUTAEIPSS and not by the SUNTAEIPSS, which is directly concerned.

527. The Government adds that the complainant's assertion that it had never had any intention of claiming two legal personalities -- one conferred by INAP and the other by the Ministry of Labour (though not as the SUTAEIPSS at the national level) -- in fact argues in favour of the Government's position. It claims that the complainant's intention was not simply to change the name but to do away with the SUTAEIPSS altogether, in the hope of extending its membership to workers governed by the private sector labour laws and regulations.

528. The Government adds that the collective rights of public employees are governed by specific provisions, such as the Administrative Career Bases Act which recognizes the right to join trade unions; consequently, the SUNTAEIPSS could not be established under the Collective Labour Relations Act, since this applies to private sector workers and to assimilated state enterprises. The Government states also that, under Act No. 25636, employees of the Peruvian Social Security Institute (IPSS) who remained in their posts after the staff rationalization process had the option of continuing to work under the public sector laws and regulations or of subscribing to the private sector system; newly recruited staff would come under the private sector system and could therefore set up trade union organizations in accordance with Legislative Decree No. 25593. The Government goes on to say that the availability of this option meant that two juridical systems -- one public and one private -- would coexist, provided that not all the workers who remained in their jobs after the rationalization process opted for the private scheme; thus the SUTAEIPSS represents those workers who are governed by the public sector laws and regulations.

529. The Government concludes that, although the disappearance of INAP has left a legal vacuum as regards the registration of trade union organizations of public employees, this does not prevent such organizations from being established to defend the rights of their members since registration is not a prerequisite and trade unions can be established purely and simply at the request of the workers. Finally, the Government points out that, if the proposal of the president of the Labour and Social Security Committee of the Congress referred to by the complainant is endorsed and all public servants thereupon come under the private sector labour regulations, nothing will impede existing public servants from exercising their collective rights in accordance with Legislative Decree No. 25593 and the regulations made under it.

530. As to the alleged refusal of the Peruvian Social Security Institute (IPSS) to negotiate the workers' list of demands for 1994, 1995 and 1996, the Government observes that, although public servants cannot negotiate wage increases collectively, such increases may be granted by the Administration if the fiscal situation of the public body concerned allows and if it is authorized to do so. The Government goes on to explain that the Public Administration has to operate within its budget and cannot obtain more resources than those specifically allocated for each fiscal year, especially since the Peruvian State is going through a period of restructuring and austerity. Wage increases for public employees during a fiscal year would necessarily entail modifying the previously approved budget, and the body concerned therefore cannot grant any such increase without the approval of the Ministry of Economy and Finance. The Government adds that the IPSS refused to negotiate wage increases with the SUTAEIPSS on the one hand because it has a budget that it cannot exceed, and on the other because specific arrangements have been made to rationalize public expenditure.

531. The Committee observes that the complaints in this case concern the refusal to register a trade union organization, the refusal of an institution to negotiate working conditions collectively and acts of anti-union discrimination by an enterprise.

532. The Committee notes the Government's detailed explanation of the Ministry of Labour and Social Advancement's refusal to register the National Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Committee notes specifically the Government's argument that the Single Trade Union of Technicians and Assistants of the Peruvian Social Security Institute (SUTAEIPSS) is a nationwide trade union of public employees that was registered with the now defunct Institute of Public Administration (INAP) and that, on the one hand, as the complainant recognizes, the SUNTAEIPSS has the same membership as the SUTAEIPSS and, on the other, their union representatives are the same, which means that they are one and the same organization.

533. The Committee further notes that the collective rights of public employees are governed by specific provisions, such as the Administrative Career Bases Act which provides for the right to join trade unions, and that the SUNTAEIPSS can therefore not be established under the Collective Labour Relations Act since the Act applies only to private sector workers and assimilated state enterprises.

534. The Committee further notes that, under Act No. 25636, employees of the Peruvian Social Security Institute (IPSS) who remained in their posts after the staff rationalization process had the option of continuing to work under the public sector laws and regulations or of subscribing to the private sector system, and that newly recruited staff would come under the private sector system and could therefore set up trade union organizations in accordance with Legislative Decree No. 25593. The Committee also notes that, according to the Government, not all the workers who remained in their jobs after the rationalization process opted for the private scheme, and that the SUTAEIPSS thus represents those workers who are governed by the public sector laws and regulations.

535. In the light of the foregoing, the Committee observes that this is a complex situation in which two sets of labour laws and regulations -- one for the public sector and one for the private sector -- coexist within a single public institution, the IPSS, and that this prevents some of the workers (those who are transferred to the private sector) from freely establishing organizations of their own choosing and electing the representatives they choose. The Committee accordingly calls on the Government to adopt the necessary measures so as to comply with the aforementioned principle, in accordance with Articles 2 and 3 of Convention No. 87.

536. As to the IPSS's refusal to negotiate the list of demands for 1994, 1995 and 1996 on the grounds that public servants are not entitled to negotiate wage increases collectively, the Committee recalls, in the first place, that by ratifying Conventions Nos. 98 and 151 Peru has undertaken to take appropriate measures to encourage and promote the full development and utilization of machinery for collective negotiation of terms and conditions of employment.

537. Regarding the budget restrictions on public bodies and the need for them to obtain the Ministry of Economy and Finance's approval to increase their employees' wages, referred to by the Government, the Committee stated in a similar case that it was aware that collective bargaining in the public sector calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent upon state budgets and that this can pose some difficulties. The Committee nevertheless observed that provision should be made for a mechanism which ensures that, in the collective bargaining process in the public sector, both trade union organizations and their public sector employers are consulted and may express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements. Irrespective of any opinion voiced by the financial authorities, the negotiating parties should be in a position to reach an agreement freely [see 287th Report, Case No. 1617 (Ecuador), paras. 63-65].

538. In these circumstances, the Committee calls on the Government to take the necessary steps for collective bargaining to take place between the Peruvian Social Security Institute (IPSS) and the Single Trade Union of Technicians and Assistants of the IPSS (SUTAEIPSS) and for provision to be made for a mechanism which ensures that, in the collective bargaining process in the public sector, both the trade union organizations and the public sector employers are consulted and may express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements.

539. Regarding the allegation of the Single Trade Union of Workers of the Peruvian Broadcasting Company (SUTRACPR) that the enterprise has committed acts of anti-union discrimination, the Committee intends to examine this allegation in the light of the recent communication of the Government dated 28 February 1997.

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

1. The Committee notes the Government's explanation of the Ministry of Labour and Social Advancement's refusal to register the National Single Union of Experts and Assistants of the Peruvian Social Security Institute (SUNTAEIPSS). The Committee observes that this is a complex situation in which two sets of labour laws and regulations -- one for the public sector and one for the private sector -- coexist within a single public institution, the IPSS, and that this prevents some of the workers concerned (those who are transferred to the private sector) from freely establishing organizations of their own choosing and electing the representatives they choose. The Committee